Part 3.
TEXAS BOARD OF CHIROPRACTIC EXAMINERS
Chapter 71.
APPLICATIONS AND APPLICANTS
22 TAC §71.3
The Texas Board of Chiropractic Examiners (Board) adopts
an amendment to §71.3, relating to admission requirements for each student
admitted to study chiropractic, as required by H.B. 972, the Board's Sunset
legislation. The amendment is adopted without changes to the proposed text
as published in the January 20, 2006, issue of the
Texas Register
(31 TexReg 366) and will not be republished.
Section 21 of H.B. 972, 79th Legislature, Regular Session, amended the
chiropractic Act, Texas Occupations Code §201.303, to clarify the educational
requirements for chiropractic applicants. This amendment to §71.3 specifies
the educational requirements as set forth by the Council on Chiropractic Education
in its Standards for Doctor of Chiropractic Programs and Requirements for
Institutional Students Status, III. F, p. 20-21 (January 2005).
The Board received no comments on the proposed rule, and the rule is adopted
without changes.
The amendment is adopted under the Texas Occupations Code, §201.152,
relating to rules, and §201.303, relating to educational requirements.
Section 201.152 authorizes the board to adopt rules necessary to regulate
the practice of chiropractic. Section 201.303 establishes educational requirements
for undergraduate study and for the study of chiropractic.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 22, 2006.
TRD-200602845
Glenn Parker
Executive Director
Texas Board of Chiropractic Examiners
Effective date: June 11, 2006
Proposal publication date: January 20, 2006
For further information, please call: (512) 305-6709
22 TAC §74.2
The Texas Board of Chiropractic Examiners (Board) adopts
an amendment to §74.2(h), relating to Facility Registration Requirements,
to delete the exemption for chiropractic colleges. The amendment is adopted
without changes to the proposed text as published in the January 20, 2006,
issue of the
Texas Register
(31 TexReg 368)
and will not be republished. The Board is adopting this amendment in order
to regulate the practice of chiropractic by students at chiropractic colleges.
The Board received no comments on the proposed amendment, and the amendment
is adopted without changes.
The amendment is adopted under Texas Occupation Code §201.152,
relating to Rules; §201.302, relating to License Required; and §201.312,
relating to Registration of Facilities. Section 201.152 authorizes the Board
to adopt rules necessary to regulate the practice of chiropractic. Section
201.302 provides that a person may not practice chiropractic without a license
issued by the Board. Section 201.312 authorizes the Board to adopt requirements
for registering chiropractic facilities as necessary to protect the public
health, safety, and welfare.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 22, 2006.
TRD-200602846
Glenn Parker
Executive Director
Texas Board of Chiropractic Examiners
Effective date: June 11, 2006
Proposal publication date: January 20, 2006
For further information, please call: (512) 305-6709
22 TAC §75.17
The Texas Board of Chiropractic Examiners (Board) adopts
new §75.17, relating to scope of practice, with changes to the proposed
text as published in the December 16, 2005, issue of the
Texas Register
(30 TexReg 8383). The text of the rule will be republished.
Section 8 of the Board's recent Sunset Act, H.B. 972, 79th Legislature, Regular
Session (2005), enacted two new sections of the Texas Chiropractic Act (Act),
Texas Occupation Code §201.1525 and §201.1526, requiring this rulemaking.
Section 201.1525 requires the Board to adopt rules clarifying what activities
are included within the scope of practice of chiropractic and what activities
are outside of that scope. The rules must also clearly specify the procedures
that chiropractors may perform, specify any equipment and the use of that
equipment that is prohibited, and may require a license holder to obtain additional
training or certification to perform certain procedures or use certain equipment.
Section 201.1526 requires that the Board establish methods under which
the Board, to the extent appropriate, will seek input early in the rule development
process from the public and from persons who will most be affected by the
proposed rule. The methods must include identifying persons who will be most
affected and soliciting, at a minimum, the advice and opinions of those persons.
DEVELOPMENT OF RULES REGARDING SCOPE OF PRACTICE
The Board met on June 2, 2005, to consider the rulemakings required under
HB 972. The Board's Rules Committee met again on August 1, 2005, to discuss
the scope of practice rules, to establish a process and schedule for developing
a scope of practice rules to identify persons and entities who will be most
affected, and to discuss methods for contacting and involving such persons
and entities. The Rules Committee identified the following groups as key persons
and entities who will be most affected, for this rulemaking: Texas Chiropractic
Association (TCA), the chiropractic colleges, the insurance industry, Consumers
Union, Citizens Against Lawsuit Abuse, the Texas Trial Lawyers Association,
and defense lawyers. Later, in response to a request from Ms. Bonnie Bruce,
the office of Representative Solomons, the Texas Medical Association, and
Ms. Bruce were added as interested parties. At the August 1st meeting, the
Texas Chiropractic Association offered draft language for a scope of practice
rule. The Rules Committee invited others to submit comments on what should
be included in scope of practice rules by August 18, 2005. No comments were
received regarding further contents for the scope of practice rules.
The Rules Committee and Board met again on August 25, 2005, to review and
discuss the draft rules. The Rules Committee met next on September 30, 2005,
and authorized release of the draft scope of practice rules for public comment
in advance of the Board's meeting in November 2005. The draft rules were made
available on the Board's web site. TCA attended the meeting and participated
in the discussion. Written comments on the draft scope of practice rules were
received from Parker Chiropractic College, Texas Chiropractic College, and
TCA. The Board and Rules Committee met again on November 3, 2005, to consider
comments received on the draft rule. The Board revised the rule and approved
it for publication. TCA attended the meeting and participated in the discussion.
In response to several requests from the public, the Board's Rules Committee
held a public hearing on the proposed rule as part of its meeting on February
1, 2006. Persons testifying at the public hearing included representatives
from Blue Cross Blue Shield of Texas; NCMIC Insurance Company; Parker Chiropractic
College; Michael Stelzer, D.C.; Texas Association of Acupuncture & Oriental
Medicine; Texas Chiropractic Association; Texas Chiropractic College; Texas
Dietetic Association; Texas Medical Board; Texas Mutual Insurance Company;
Texas Neurological Society; Texas Physical Therapists Association; Texas State
Board of Acupuncture Examiners; Harold Tonderra, D.C.; and Cynthia Vaughn,
D.C. The Rules Committee also considered the written comments previously submitted.
The Board and the Rules Committee next met on February 23, 2006, to consider
revisions to the proposed rule in response to comments and adoption of the
final rule. TCA attended the meetings and participated in the discussion.
The Rules Committee met again on April 10, 2006, to review the response to
comments, revisions to the proposed rule, and to recommend the rule for adoption.
Representatives from Progressive Insurance, TCA, and the Governor's Office
attended the meeting.
The Board and the Rules Committee met on May 11, 2006, to consider adopting
the proposed rule.
SCOPE OF PRACTICE
The practice of chiropractic is governed by the Texas Chiropractic Act,
Texas Occupations Code Chapter 201 (the Act), and the scope of practice is
addressed under §201.002, relating to practice of chiropractic, and §201.003,
relating to applications and exemptions. The key aspects of chiropractic,
as described under §201.002(b), are set forth under subsection (a) of
the proposed rule. Section 201.002(c) describes procedures that are not included
within the practice of chiropractic.
In developing this scope of practice rule, the Board has striven to cover
activities currently practiced by chiropractors in Texas without drawing the
rule so narrowly as to exclude new practices, therapies, and technologies
that may be developed in the future that are consistent with the scope of
practice as described under the Chiropractic Act and this rule. This rule
does not broaden the scope of practice of chiropractic in Texas. The Board
recognizes that the scope of practice described under this rule is narrower
than the scope of chiropractic taught in Texas schools and in other schools
around the nation. The narrower scope of practice is described by the Chiropractic
Act with which this rule must be consistent.
The rule is divided into six subsections: aspects of practice; definitions;
examination and evaluation; analysis, opinion, and diagnosis; treatment procedures
and services; and questions regarding scope of practice.
Subsection (a), aspects of practice, describes the fundamental aspects
as provided under the Act and the use of needles. Subsection (b) provides
definitions for terms used in this section.
Subsection (c) describes examination and evaluation services related to
the bio-mechanical condition of the spine and musculoskeletal system of the
human body, the existence of subluxation complexes, treatment procedures,
and differentiation of patients. Additional training or certification requirements
for electro-diagnostic testing and performance of radiologic procedures are
described under subsection (c)(3). Examination and evaluation services that
are outside the scope of chiropractic, and the equipment used for such services,
are described under subsection (c)(4).
Subsection (d) describes the types of analysis, diagnosis, or other opinions
regarding the findings of examinations and evaluations that a chiropractor
may render. Analysis, diagnosis, and other opinions regarding the findings
of examinations and evaluations which are outside the scope of chiropractic
are described under subsection (d)(2).
Subsection (e) describes treatment procedures and services that are within
the scope of practice of chiropractic. The objectives of therapeutic chiropractic
treatment procedures are described under subsection (e)(1). Specifically authorized
treatment procedures and services are listed under subsection (e)(2). Treatment
procedures and services that are outside the scope of practice of chiropractic
are described under subsection (e)(3).
Subsection (f) describes the procedure for submitting further questions
regarding the scope of practice as well as questions regarding interpretation
of this rule.
There have been four issues of particular concern regarding this rulemaking:
surgical procedures, needle electromyography, manipulation under anesthesia,
and acupuncture.
Surgical Procedures
One of the key aspects of practice is that the practice of chiropractic
does not include incisive or surgical procedures. §201.002(c)(1). The
Act defines "incisive or surgical procedure" as "include(ing) making an incision
into any tissue, cavity, or organ by any person or implement;" however, "the
term does not include the use of a needle for the purpose of drawing blood
for diagnostic testing." §201.002(a)(3). The Act defines "surgical procedure"
as "include(ing) a procedure described in the surgery section of the common
procedure coding system as adopted by the Centers for Medicare and Medicaid
Services of the United States Department of Health and Human Services (CMS)."
CMS has adopted the American Medical Association's (AMA's) Current Procedural
Terminology (CPT) Codebook, a numeric coding system consisting of descriptive
terms and identifying codes that are used primarily to identify medical services
and procedures furnished by physicians and other health care professionals.
Health care professionals use the CPT Codebook to identify services and procedures
for which they bill public or private health insurance programs. Decisions
regarding the addition, deletion, or revision of CPT codes are made by the
AMA. The CPT Codebook is republished and updated annually by the AMA. Also
note that the CPT Codebook includes the following disclaimer: "It is important
to recognize that the listing of a service or procedure and its code number
in a specific section of this book does not restrict its use to a specific
specialty group. Any procedure or service in any section of this book may
be used to designate the services rendered by any qualified physician or other
qualified health care professional" (p. xiii). Additional information on the
common procedure coding system is available at www.cms.hhs.gov/medicare/hcpcs/codpayproc.asp.
Needle EMG
This rule provides that needle electromyography (needle EMG) is within
the scope of practice of chiropractic in Texas. Needle EMG is a type of electro-neuro
diagnostic testing. Needle EMG does not involve the injection of any substances
or the removal of any tissue. Under this rule, the Board has established criteria
for what constitutes incisive and surgical use of needles. Pursuant to this
criteria, needle EMG is a nonincisive procedure. The CPT Codebook identifies
needle EMG as medicine, not surgery (Code 95860 - 95872). Accordingly, the
Board finds that needle EMG is a nonincisive and nonsurgical procedure.
Although needle EMG has been practiced by chiropractors in Texas for more
than 25 years, there has been an ongoing dispute as to whether needle EMG
is within the scope of practice of chiropractic. Previous opinions from the
Office of the Attorney General (AG) have questioned the use of needles and
needle EMG by chiropractors (DM-415, regarding whether the practice of acupuncture
is within the scope of practice for a licensed Texas chiropractor and related
questions (Sept 23, 1996); DM-443, regarding the authority of a physical therapist
to perform needle electromyography testing (July 8, 1997); and DM-472, regarding
the use of injectable substances by licensed chiropractors, and related questions
(Mar. 30, 1998).
These AG opinions, however, were based on prior versions of the Chiropractic
Act and include technical assumptions that conflict with the Board's findings
regarding needle EMG. In 1997 in response to DM-415, the Legislature amended
the Acupuncture Act to allow chiropractors to practice acupuncture, defining
acupuncture as the non-incisive, non-surgical use of needles (
See
Tex. Occ. Code §205.003). In 2004, a Sunset Commission staff
report recommended that the Board abide by these AG opinions and "larify that
chiropractors may not perform the procedure" and that "(t)he Board should
seek additional clarification from the Attorney General about whether chiropractors
can interpret such a procedure" (SUNSET STAFF REPORT, TEXAS BOARD OF CHIROPRACTIC
EXAMINERS, p. 5 (Feb. 2004)).
However, the Board's 2005 Sunset legislation, H.B. 972, was silent on the
subject of needle EMG. The legislation did make two significant changes to
the Chiropractic Act. First, a definition of "surgical procedure" was added
to the Act which identified as surgical the surgical procedures described
in the surgery section of the CPT Codebook. Tex. Occ. Code §201.002(a)(4).
As noted above, needle EMG is in the medicine section of the CPT Codebook.
Second, the Legislature specifically mandated that the Board promulgate this
rule regarding scope of practice and a process through which the Board might
receive input early in the rule development process from the public and from
persons who will be most affected by the proposed rule (§201.1525 and §201.1526).
Through this rulemaking process, the Board has found that there has been no
history of complaints or malpractice insurance claims against chiropractors
relating to the practice of needle EMG. This lack of complaints and malpractice
claims indicates that the practice of needle EMG by chiropractors has not
presented any concerns regarding public health and safety. However, uncertainty
regarding whether needle EMG is within the scope of practice of chiropractic
has lead insurers to question and delay payments for the procedure.
Therefore, the Board finds, based upon (a) its technical review of the
practice of needle EMG; (b) its legal authority under the Chiropractic Act
as amended by H.B. 972; (c) the need to resolve this issue; and (d) the
Manipulation Under Anesthesia
Manipulation under anesthesia (MUA) has been part of the practice of chiropractic
in Texas for more than 25 years. The Board has not received any complaints
regarding the practice of MUA, and the principal malpractice insurance carrier
for chiropractors in Texas has likewise not received any claims. However,
MUA is listed under the surgical codes of the CPT Codebook. Consequently,
the Board is still reviewing several issues regarding MUA and whether it is
within the scope of practice of chiropractic in Texas as described under the
Chiropractic Act. In the absence of any evidence of a risk to the public health,
the Board has elected to not disturb the status quo until it has reached a
final conclusion on whether MUA remains within the scope of practice in Texas.
Acupuncture
Acupuncture has long been part of the practice of chiropractic, and the
practice of acupuncture by chiropractors has been authorized since the Legislature
amended the Acupuncture Act in 1997 to allow chiropractors and other health
care practitioners to practice acupuncture when they are acting within the
scope of their licenses (
See
Texas Occupations
Code §205.003). Post-graduate training in acupuncture is offered by the
chiropractic colleges, and the National Board of Chiropractic Examiners offers
a national standardized certification examination in acupuncture. Consequently,
the Board finds that acupuncture is within the scope of practice of chiropractic
in Texas.
FURTHER RULEMAKING
As a result of the public comments received on the proposed rule, the Board
has decided that further rulemaking is required to develop definitions to
more clearly describe the scope of practice of chiropractic. Because the proposed
definitions were not included in the proposed rule and because the Board believes
that these definitions would benefit from the deliberation provided by public
review and comment, the definitions will be set out as proposed amendments
to this rule following the conclusion of this rulemaking. In addition, the
Board anticipates that additional rulemaking will be required in the future
in response to questions regarding the scope of practice of chiropractic and
as the Board's experience with implementation of this rule will likely illuminate
the need to further clarify and delineate the scope of practice of chiropractic.
COMMENTS ON THE PROPOSED RULE
The following entities either submitted written comment on the proposed
rule or oral testimony at the public hearing on February 1, 2006: Blue Cross
Blue Shield of Texas; Walter T. Brzozowske, D.C.; Michele M. Doone, D.C.;
NCMIC Insurance Company; Parker Chiropractic College; Chester Y. Smith, D.C.;
Michael Stelzer, D.C.; Texas Association of Acupuncture & Oriental Medicine;
Texas Chiropractic Association; Texas Chiropractic College; Texas Dietetic
Association; Texas Medical Association; Texas Medical Board; Texas Mutual
Insurance Company; Texas Orthopaedic Association, Texas Neurological Society;
Texas Physical Therapy Association; Texas State Board of Acupuncture Examiners;
Harold Tondera, D.C.; and Cynthia Vaughn, D.C.
General Comments
One entity commented that the proposed rule did not satisfy the legislative
mandate because it did not clarify what activities are included within the
scope of practice and what activities are outside the scope of practice. The
entity stressed that describing an act as not within the scope of chiropractic
if it is "inconsistent with the practice of chiropractic" did not clarify
what activities are proscribed. It merely substitutes one generality for another.
The Board disagrees. This scope of practice rule includes six subsections.
Three of the subsections set out specific aspects of practice relating to
examination and evaluation; analysis, opinion, and diagnosis; and treatment
procedures and services. The last paragraph of each of these subsections describes
aspects of practice outside of the scope of practice, including other aspects
that are inconsistent with the aspects described in each subsection. For example,
if a treatment procedure and service, such as using a cold or low-level light
laser for cosmetic purposes, is inconsistent with the practice of chiropractic
and the treatment procedures and services described under Subsection (e) of
this rule, then the treatment procedure and service is outside of the scope
of practice. No change was made in response to this comment.
One entity said that while the Board proposed detailed expansions of the
scope of practice of chiropractic, it only reiterated the statutory limitations
on the scope of practice. The entity saw that the mandate of the Legislature
through Sunset Review required an equal amount of consideration and exposition
on the limitations of chiropractic. The commenter has misinterpreted the Board's
intent and objectives as well as the structure of this rule. The scope of
practice rule was developed to clarify what activities are within the scope
of practice. The rule does not expand the scope of practice but only clarifies
the existing and traditional practice of chiropractic as authorized under
the Chiropractic Act. In order to be within the scope of practice, any activity
must relate to the practices described under Texas Occupations Code §201.002(b),
also set forth at §75.17(a)(1), and must not include any of the activities
proscribed under §201.002(c) of the Act and as set forth under §75.17(a)(2)
and (3) and should be consistent with the activities described under §75.17(c)(1)
and (2), (d)(1), and (e)(1) and (2). No change was made in response to this
comment.
One commenter criticized the omission of the specialties in the practice
of chiropractic and requested that the scope of practice under these specialties
should be listed and expanded to support these specialties. The Board is considering
whether to recognize chiropractic specialties. While such specialties may
be the subject of a future rulemaking, the Board does not plan to include
further rules regarding the specialties at this time. No change was made in
response to this comment.
Two commenters noted that there is a considerable difference in Diplomate
Specialty status and certifications which needs to be addressed separately
and succinctly. A third commenter pointed out that the proposed rule did not
include the Board's prior recognition of Orthopedic Diplomates and Radiology,
Neurology, and Nutritional Diplomates as chiropractic specialties held to
a higher standard of care. The Board agrees that the differences between Diplomate
specialties and certifications need to be addressed separately and distinctly,
but the Board is not acting on this issue at this time. No change was made
in response to this comment.
A commenter argued that because the proposed rule failed to specify the
procedures that chiropractors may perform, it did not satisfy the legislative
mandate. Specific procedures are described under subsections (c)(1) and (2),
relating to the evaluation and examination of individual patients or patient
populations, (d)(1), relating to analysis, diagnosis, and other opinions,
and (e)(1) and (2), relating to treatment procedures and services. No change
was made in response to this comment.
A commenter said that the scope of practice is limited to subluxation of
the spine by statute. "Subluxation of the spine" is not used in the Chiropractic
Act. Section 201.002(b)(2) does refer to "improve the subluxation complex
or the biomechanics of the musculoskeletal system." No change was made in
response to this comment.
A commenter suggested that the use of the phrases "inconsistent with the
practice of chiropractic" as identification for something that is outside
the scope of practice and "consistent with the practice of chiropractic" be
eliminated throughout the rule because the phrases incorrectly imply a lack
of clear practice boundaries. The Board disagrees. Under "Aspects of Practice,"
subsection (a), the rule sets forth the basic scope of practice and what is
not included within the scope. Subsections (c), (d), and (e) each set forth
with more specificity individual aspects of practice. Practices that are inconsistent
with the aspects of practice described under these subsections are inconsistent
with the scope of practice. In delineating the boundaries of practice, the
Board wanted to ensure that the rule was not drafted so narrowly that new
practices, treatments, and techniques that are consistent with the aspects
of practice would be inadvertently excluded by the rule. The Board will monitor
implementation of the rule and look to see if the practice boundaries need
to be more clearly defined. The further definitions that the Board is proposing
be included in this rule should provide additional clarity. No change was
made in response to this comment.
A commenter said that the proposed rule was far too general and omitted
a number of procedures reviewed by the Board in the past. The commenter noted
that the Board's website included a number of prior opinions regarding the
scope of chiropractic as it relates to specific procedures and that most of
the procedures were not addressed in the proposed rule. The procedures discussed
in prior Board opinions included, among others: hypnotherapy, magnetic devices,
pulmonary function tests, videoflouroscopy, herbal enemas, barium contrasts,
intersegmental traction, nasal specific technique, nasal lavage, bone scans,
and school physicals. The Board considered describing a lengthy list of activities
that are within the scope of practice. However, the Board did not want to
limit the ability of doctors to provide services within the scope of practice
which might not be enumerated. The Board concluded that it was in the best
interest of the public health and safety not to include such a list. In addition,
the Board contacted other states that had adopted such detailed lists and
learned that such lists provided little to no additional clarity regarding
the scope of practice. Those states still received numerous questions regarding
scope of practice. Furthermore, some of the activities listed by the commenter
are already included in the activities listed under §75.17(c)(2) and
(e)(2), such as school physicals which are a type of physical examination.
No change was made in response to this comment.
One Commenter said that the Board failed to address two of the more controversial
procedures: needle electromyography (EMG) and manipulations under anesthesia
(MUA). Needle EMG is within the scope of practice and is a type of electro-diagnostic
testing as identified under §75.17(c). The amendment of the Chiropractic
Act by H.B. 972 clearly placed needle EMG within the scope of practice. Needle
EMG is identified by the CPT Codebook as medicine (codes 95860 - 95904). Consequently,
needle EMG is clearly not a surgical procedure. Furthermore, under §75.17(a)(3),
the Board has clarified that use of a needle is incisive, and outside the
scope of practice, only if the procedure results in the removal of tissue
other than for the purpose of drawing blood. Regarding MUA, the Board is still
reviewing several issues relating to this procedure. At this time, the Board
is taking no position on whether MUA is or is not within the scope of practice.
MUA has been considered part of the practice of chiropractic in Texas for
at least 25 years, and the Board has received no complaints relating to the
practice of MUA. In the absence of any evidence of a risk to the public health,
the Board will not disrupt the status quo until it has reached a final conclusion
on whether MUA remains within the scope of practice in Texas. No change was
made in response to this comment.
A commenter said that H.B. 972 excludes surgical procedures, including
manipulation under anesthesia. While MUA is listed under the surgical codes
of the CPT Codebook, the Board is still reviewing several issues relating
to this procedure. At this time, the Board is taking no position on whether
MUA is or is not within the scope of practice. MUA has been considered part
of the practice of chiropractic in Texas for at least 25 years, and the Board
has received no complaints relating to the practice of MUA. In the absence
of any evidence of a risk to the public health, the Board will not disrupt
the status quo until it has reached a final conclusion on whether MUA remains
within the scope of practice in Texas. No change was made in response to this
comment.
Two commenters said that "neuromusculoskeltal" should be used in place
of "musculoskeletal." "Musculoskeletal system" is the term used in the Chiropractic
Act.
See, e.g.
, Tex. Occ. Code §201.002(b).
The medical definitions of "musculoskeletal" and "subluxation complexes" often
include associated neurology. As mentioned, the Board is considering a further
rulemaking to define these and other terms. This comment would best be addressed
through that rulemaking. No change was made in response to this comment.
A commenter noted that throughout the proposed rule, the term "system"
was used multiple times and suggested that it would be more correct to refer
to systems. The context in which "system" is used throughout the text makes
it clear that it refers to the musculoskeletal system. No change was made
in response to this comment.
A commenter noted that the list of persons who participated in development
of the proposed rule and the persons determined to be most affected and invited
to participate in development of the proposed rule did not include individual
practitioners, some of the persons who will be affected most. Individual practitioners
have a standing invitation to participate in the Board's meetings and rulemakings.
Information on the Sunset Review of the Board and this rulemaking has been
provided through the Board's newsletter and web site since the first quarter
of 2004. It is up to the individual practitioners, however, to express their
interest in a particular issue. No change was made in response to this comment.
Several commentors requested that the proposed rules be withdrawn in their
entirety. The Board believes that the revisions made in response to comments
have addressed any concerns regarding the rule as a whole. In addition, the
Legislature has mandated that the Board adopt this scope of practice rule.
None the less, the Board recognizes that the implementation of the scope of
practice rule will be an ongoing process, particularly during the initial
implementation and as new treatments become available. The Board welcomes
additional comments on how this rule may be improved in the future. No change
was made in response to this comment.
One commenter said that the proposed rule did not address the Board's purposes
of protecting the public from unscrupulous practices and ensuring that practitioners
are practicing appropriately. The Board has additional rules under this title
that address appropriate and unscrupulous practice, such as §74.5, relating
to rules of conduct for chiropractic facilities, §74.9, relating to disciplinary
actions for chiropractic facilities, §75.1, relating to grossly unprofessional
conduct, §75.2, relating to proper diligence and efficient practice of
chiropractic, §75.3, relating to individuals with criminal convictions, §75.10,
relating to disciplinary guidelines, §77.2, relating to publicity, §80.5,
relating to maintenance of chiropractic records, and the current rulemaking
for proposed §80.9, relating to rules to prevent fraud. No change was
made in response to this comment.
Several commenters noted that the proposed scope of practice is narrower
than the training chiropractors receive and requested a broader scope of practice.
The scope of practice of chiropractic in Texas is limited to what is authorized
under the Chiropractic Act. Because the chiropractic colleges teach a national
curriculum, chiropractors are trained in a broader scope of practice than
is allowed under the Texas Chiropractic Act. No change was made in response
to this comment.
Preamble Comments
The Texas State Board of Acupuncture (TSBA) asserted that it should have
been included in the drafting of the proposed rule as an entity most affected.
The Board disagrees that TSBA will be affected by this rule. This rule relates
to the scope of chiropractic under the Chiropractic Act. The Acupuncture Act
specifically provides that it "does not apply to a health care professional
licensed under another statute of this state and acting within the scope of
the license." Texas Occupations Code §205.003(a). Acupuncture has long
been part of the practice of chiropractic, and the Board has not received
complaints relating to the practice of acupuncture by chiropractors. In addition,
the Texas Medical Board, which serves as staff to TSBA, was sent an invitation
to participate in the rulemaking when it began in April 2005. No change was
made in response to this comment.
The Texas Association of Acupuncture and Oriental Medicine (TAAOM) objected
to being specifically excluded from development of the proposed rule. The
Board disagrees. No one was specifically excluded from development of this
rule. The Board held several public meetings over most of 2005 where the scope
of practice rule was discussed. TAAOM would have been welcome to participate
in any of these meetings, or the Board and its staff would have been happy
to discuss the rule with TAAOM or its representatives at any time. TAAOM did
participate in the public hearing on February 1, 2006. No change was made
in response to this comment.
The Texas Medical Association (TMA) commented that it did not receive notice
of the rulemaking. In April of 2005, at the outset of this rulemaking, the
Board's executive director contacted TMA to inform them of this rulemaking.
No change was made in response to this comment.
Several commenters stated that a concise statement of the principal reason
for and against adoption of the proposed rule is required by Government Code §2001.030.
As required, a concise statement of the principal reason for and against adoption
of the rule was sent to the commenters on May 9th, prior to the Board's meeting
to consider the rule for adoption on May 11, 2006.
Specific Comments
One commenter said that §75.17(a) should include the statement that
"surgical procedure" includes a procedure described in the surgery section
of the common procedure coding system as adopted by the Centers for Medicare
and Medicaid Services of the United States Department of Health and Human
Services. The Chiropractic Act includes a definition for "surgical procedure."
Texas Occupations Code §201.002(a)(4). The statutory definition applies,
and there is no need to restate the statutory definition in this rule. No
change was made in response to this comment.
One commenter suggested that, since the Chiropractic Act is clearly the
statutory limit and cannot be increased by rule or interpretation, to include
in the rule under "Aspects of Practice," §75.17(a), that "The practice
of chiropractic is limited to the biomechanical condition of the spine and
musculoskeletal system of the human body." This rule was adopted in compliance
with the scope of practice described under §201.002 and §201.003
of the Chiropractic Act. Limitations on the practice of chiropractic are included
under the rule at (c)(4), (d)(2), and (e)(3). No change was made in response
to this comment.
One commenter recommended adding to §75.17(a) that "chiropractic practice
does not include any procedure that is listed in the surgical section of the
CPT Codebook" and suggested that total dependence on the CPT Codebook for
definition of surgical procedures may present some unintended consequences.
The Board agrees that it is awkward to rely upon the CPT Codebook for the
definition of "surgical procedure." However, that is what is required by statute.
No change was made in response to this comment.
One commenter said that under §75.17(a)(1) other healthcare professionals
who evaluate, analyze or examine a person's back or musculoskeletal system
or administer specified care will be characterized as practicing chiropractic.
Section 2001.003 of the Chiropractic Act specifically refers to other health
care licensees. The practice of chiropractic includes activities, technologies,
and procedures that are within the scope of practice for other health care
professionals. In response to this comment, the Board has included subsection
(a)(4) which clarifies that the rule does not apply to other licensed health
care professionals.
One commenter said that in §75.17(a)(2) the board mentions what practice
of chiropractic does not include four (4) times and noted that in proposed
section (a)(2), the statutory definition is repeated without adding anything
else. Under 75.17(c)(4), (d)(2), and (e)(3), the Board has indicated that
other activities that are inconsistent with the activities described under
each of those subsections are outside of the scope of practice. No change
was made in response to this comment.
One commenter said that under "Aspects of Practice," §75.17(a)(2)(C),
the statutory language is again followed and "the use of x-ray therapy or
therapy that exposes the body to radioactive materials" is not included. It
is recommended to add a definition that clearly states what is and what is
not therapy. Therapeutic care is described under subsection (e). No change
was made in response to this comment.
One commenter said that the Board's statement in §75.17(a)(3) that
the use of a needle is surgical if the procedure is listed in the surgical
section of the CPT Codebook is contrary to statute. The use of a needle as
described in the surgery section of the CPT Codebook is only a sub-category
of all of the surgical procedures identified. The Chiropractic Act establishes
that surgical procedures, as identified in the CPT Codebook, are outside of
the scope of practice. Under 75.17(a)(3)(A), the Board has clarified that
the use of a needle is incisive, and prohibited under the Chiropractic Act,
only if it results in the removal of tissue other than for the purpose of
drawing blood. No change was made in response to this comment.
One commenter said that the Board does not have the authority to narrow
the definition of "incisive" as proposed in §75.17(a)(3). To the contrary,
"incisive" is not defined under the Chiropractic Act. The Board does have
the authority to define terms not defined by statute as necessary to clarify
the scope of practice and other matters addressed by the Chiropractic Act.
The Board's description of what constitutes an incisive use of needles is
consistent with the Chiropractic Act. No change was made in response to this
comment.
One commenter suggested to include under §75.17(a)(3) the statutory
definitions of "incisive or surgical procedure" and "surgical procedure" since
the limitations are dependent on these definitions. All rules must comply
with their authorizing statute, and it is customary to not repeat statutory
definitions except where needed. Clearly, the statutory terms of "incisive
or surgical procedure" and "surgical procedure" apply to this rule. No change
was made in response to this comment.
One commenter recommended that the Board consider revisions to §75.17(a)(3)
to provide clear direction on what is allowed and what is not allowed concerning
the use of needles in diagnostic testing. Subsection (a)(3) clearly defines
when procedures with needles are incisive or surgical and, therefore, outside
of the scope of practice. Diagnostic testing is addressed under subsection
(c). No change was made in response to this comment.
One commenter said that the definition of "incisive" in §75.17(a)(3)(A)
is inconsistent with the statutory definition in the Occupations Code and
therefore is beyond the Board's authority. The term "incisive" was not defined
under the proposed rule. The rules does clarify, under §75.17(a)(3)(A),
that the use of a needle is incisive, and prohibited, if it results in the
removal of tissue other than for the purpose of drawing blood. The Board carefully
drafted this clarification after lengthy discussion and in consideration of
the exclusion of incisive or surgical procedures under §201.002(c) of
the Chiropractic Act. No change was made in response to this comment. One
commenter asked whether the definition of incisive in §75.17(a)(3)(A)
disallows the use of any incisive needle for other diagnostic tests in which
the needle enters tissue. The Chiropractic Act prohibits all incisive procedures
other than "the use of a needle for the purpose of drawing blood for diagnostic
testing" (Tex. Occ. Code §201.002(3)). Other incisive uses of needles
are prohibited. However, as described under this rule, not all uses of needles
are incisive. The additional definitions that the Board has proposed adding
to this rule should provide further clarification. No change was made in response
to this comment.
One commenter stated that §75.17(b) lacks definitions concerning several
key terms used in §75.17(e)(2). What is the definition of acupuncture
as used in this rule? The Board agrees that additional definitions are needed
for acupuncture and other terms. However, due to the substantive nature of
any new definitions and due to the Legislative mandate to adopt this scope
of practice rule, the Board has determined that any new definitions would
best be addressed through a new rulemaking amending this rule. That rulemaking
will be initiated following adoption of this rule. No change was made in response
to this comment.
One commenter asked for the definition in §75.17(b) of therapeutic
care? Therapeutic care under the practice of chiropractic is described under §75.17(e)(1).
No change was made in response to this comment.
One commenter recommended removing "(2004)" CPT Code Book from §75.17(b)
and replacing it with "(most current year)." The Board is required to cite
to the 2004 CPT Codebook as it is the most current at the time of this rulemaking.
No change was made in response to this comment.
One commenter asked for clarification of the definitions in §75.17(b)(3)
and the basis for this particular provision. The Board already has in place
a rule regarding when a chiropractor may allow or direct a person who is not
licensed by the Board to perform procedures or tasks that are within the scope
of chiropractic. See §80.1 of this title, relating to Delegation of Authority.
It is also important to note how "on-site" is used under Subsection (c)(3)(A)(ii)
of this rule. No change was made in response to this comment.
Two commenters suggested that "On-sight" in §75.17(b)(3) should be
amended to read "On-site." The paragraph has been revised to read "on-site."
Additional minor changes have been made to correct grammatical and stylistic
errors.
Two commenters requested that §75.17(c)(1)(A) be clarified to reflect
that the rule strictly relates to the spine and musculoskeletal system of
the human body and not to other organ systems such as the heart, lungs, liver,
kidneys, gastrointestinal system, etc and that medical issues relating to
such systems be referred to other professionals. Section 75.17(c)(1)(A) establishes
that the discussion under that subsection is of the spine and musculoskeletal
system and applies to the use "system" in the following subordinate clauses.
No change was made in response to this comment.
One commenter asked if, under §75.17(c)(2), the scope of practice
includes the taking of x-rays for evaluation purposes. An x-ray is a subtype
of diagnostic imaging. The Chiropractic Act authorizes the use of subjective
and objective means to analyze, examine, or evaluate the biomechanical condition
of the spine and musculoskeletal system of the human body. An x-ray can be
an important tool for analyzing, examining, or evaluating a patient's health.
No change was made in response to this comment.
One commenter asked what is the difference under §75.17(c)(2) between
diagnostic imaging and x-ray insofar as the terms are used in the rule and
what is the source of authority to perform diagnostic testing and sonogram.
An x-ray is a subtype of diagnostic imaging. The Chiropractic Act authorizes
the use of subjective and objective means to analyze, examine, or evaluate
the biomechanical condition of the spine and musculoskeletal system of the
human body. An x-ray can be an important tool for analyzing, examining, or
evaluating a patient's health. No change was made in response to this comment.
One commenter asked what is the difference under §75.17(c)(2) between
diagnostic imaging and x-ray. Diagnostic imaging refers to imaging systems
other than x-ray images. No change was made in response to this comment.
One commenter asked what is the authority to perform diagnostic testing
and sonograms as described under §75.17(c)(2). Section 201.002(b)(1)
of the Chiropractic Act authorizes the use of "objective or subjective means
to analyze, examine, or evaluate the biomechanical condition of the spine
and musculoskeletal system of the human body." Chiropractors receive training
in the interpretation of diagnostic images as part of their basic education.
No change was made in response to this comment.
One commenter said that the Board's inclusion of electro diagnostic testing
under §75.17(c)(2)(D) indicates that the Board continues to believe that
it may place "surgical" or "incisive" procedures within the scope of chiropractic
so long as they can be classified as means to analyze, examine, or evaluate
the biomechanical condition of the spine and musculoskeletal system of the
human body. The CPT Codebook identifies needle EMG as medicine under codes
95860 - 95904. Consequently, needle EMG is not a surgical procedure. Furthermore,
the Board has determined that needle EMG does not involve the incisive use
of a needle to remove tissue. No change was made in response to this comment.
One commenter said that, regarding §75.17(c)(3)(A), chiropractors
are not trained in the diagnosis of diseases of the nervous system, they are
not trained in the treatment of those diseases, and they do not have the basic
medical knowledge to do EMG/NCS safely or accurately. The commenter noted
that chiropractors, by their own rules of practice, treat disorders of the
musculoskeletal system and that chiropractic practice should not include EMG
or nerve conduction studies (NCS). The Board disagrees. Regardless of post
graduate specialty training, the traditional chiropractic education has multiple
classes that discuss the differential diagnosis of the nervous system in depth.
These include classes on anatomy of the peripheral and central nervous system,
physiology and function of the nervous system and clinical conditions related
to the nervous system and other systems governed by the nervous system, which
includes the musculoskeletal system. Traditional chiropractic training, regardless
of specialization, also includes specific classes related to clinical neurology,
physical examination techniques, differential diagnosis, and, in some cases,
management of various conditions that affect the neuraxis. Specifically, there
is training in the diagnosis and recognition of disorders that relate to the
human cortex, brainstem, cerebellum, spinal cord, peripheral nerve, motor
neuron, neuromuscular junction, muscle as well as infectious disease, vascular
lesions and systemic diseases that can alter or create neurological illness
and or cause changes in normal physiologic function. It is well understood
that the musculoskeletal system is not a stand-alone system and that its function
is a direct reflection of the nervous system and that it can be altered in
function as the result of changes in the nervous system. As a result, traditional
chiropractic education, without taking into account post graduate study, includes
education on the nervous system so that both the nervous system and the related
musculoskeletal system can be understood, examined, and diagnosed if a condition
presents. There are also academic discussions and training as it relates to
various forms of treatment or the need for various forms or diagnostic testing
or the need for referral to other healthcare practitioners of different specialties
if appropriate or necessary. Outside of the traditional chiropractic training,
there are post graduate studies that go significantly beyond the training
discussed above. This can include specific training in neurology and specialization
in the field of electro-diagnosis. Testing and certification procedures include
written as well as practical testing. This testing involves demonstration
of actual technique and performance as well as comprehensive testing of neurological
disease at every level of the nervous system. After evaluation of the majority
of specialty studies in medicine that relate to the nervous system, it appears
that the chiropractic specialty programs in electro-diagnosis that meet the
National Chiropractic Board of Examiners criteria are equal, if not beyond,
the medical specialty training. In many instances, the medical training in
neurology only offers electro-diagnosis as an elective or only minimal time
is spent in electrodiagnostic training. The chiropractic specialty education
in electro-diagnosis lasts typically over a year and takes place under close
supervision and includes case study requirements, hands-on experience, and
comprehensive examinations that involve all aspects of training. In medical
neurology training, there are typically other areas of interest that fill
the time of a resident. As a result, the Board finds that the training of
a chiropractic specialist is comparable to that of a neurology resident. No
change was made in response to this request.
One commenter said that, regarding §75.17(c)(3)(A), H.B. 972 did not
change prior AG opinions or decisions of the State Office of Administrative
Hearings and that the Board's definition of "surgical procedure" is not consistent
with the statutory language. To the contrary, H.B. 972 by providing a definition
for "surgical procedure" changed the underlying law upon which those AG opinions
were based. In addition, the Legislature did not address needle EMG in H.B.
972, but the Legislature did direct the Board to develop this rule regarding
scope of practice. No change was made in response to this comment.
One commenter said that §75.17(c)(3)(A) includes authorization for
electro-diagnostic testing and requires extra training in the amount of 120
hours for this type of testing. The commenter noted that this is a public
safety issue that requires further review and consideration by experts in
the field before it should be included in the proposed rule. The commenter
requested that the proposed rule be revised at this time to delete any authority
for chiropractors to perform electro-diagnostic testing that involves needles
in the muscle. The Board disagrees. Testimony received at the February 1,
2006, public hearing indicated that there is no statute or rule that stipulates
the mandatory level of education, didactic or otherwise, for a physician to
complete and be proficient in before performing electromyography. The testimony
submitted revealed that only properly trained physicians should be authorized
to perform electro-diagnostic testing, but the Medical Board has not listed
the criteria or provided a definition for what constitutes proper training.
Understandably, the Medical Board has not done so because there are significant
variations between each medical residency or specialty program relating to
electro-diagnosis. The Board has developed these specific rules and training
and education requirements in consultation with experts. The minimal proficiency
standards under this rule will protect the public health. No change was made
in response to this comment.
One commenter stated that, regarding §75.17(c)(3)(A), EMG and NCS
are expensive tests (averaging $350-700 per test) and that the validity of
the test rests entirely on the physician doing the test. The commenter disputed
the proposed training requirements. The Board disagrees. Certain series of
x-rays and magnetic resonance imaging (MRI) tests can be much more expensive
than a needle EMG. X-rays and MRIs are ordered and performed much more frequently
than needle EMGs. The medical definition of "musculoskeletal" includes the
study of the nervous system, and this is included as part of the basic chiropractic
education. In a letter to the Board, Rand Swenson, DC, MD, PhD, and Associate
Professor of Medicine (Neurology) and Anatomy, and Acting Chairman of Anatomy
at Dartmouth Medical School, stated that needle EMG is within the scope of
practice for chiropractors. In addition, at the public hearing on February
1, 2006, Dr. Brandon Brock, Diplomate of the American Chiropractic Neurology
Board, submitted literature indicating the time some medical neurology residencies
spend on needle EMG: The University of Texas Medical Branch at Galveston requires
only one month, needle EMG is an elective and not a requirement at Baylor
College of Medicine and Loma Linda University Medical Center, the Mayo Clinic
College of Medicine and the Southwestern Medical Center have a two-month requirement.
The Board finds that it is in the best interest of public health and safety
to establish for chiropractors minimum competency standards for performing
electromyography. No change was made in response to this comment.
One commenter said that, regarding §75.17(c)(3)(A), chiropractors
are limited to diagnosis and treatment of disorders of the musculoskeletal
system and spine. The commenter admitted that, while chiropractors do sometimes
treat compression of the nerve roots caused by herniated discs in the spine,
that condition (a radiculopathy) can be diagnosed by an EMG but rarely by
a nerve conduction study. The Board disagrees. The medical definition of "musculoskeletal
system" includes the nervous system, and the training for chiropractors and
specialists in the field of electro-diagnosis have been discussed above. Since
needle EMG is examiner dependent, the pain associated with each test will
depend on the examiner. A needle EMG can be less expensive than certain series
of x-rays and MRIs that are ordered and performed more frequently than needle
EMG. Furthermore, in the event that imaging is negative, and EMG/NCS is appropriate
and can provide a chiropractor with a diagnostic picture to treat a patient
within the scope of practice of chiropractic. No change was made in response
to this comment.
One commenter said that, regarding §75.17(c)(3)(A), EMG requires the
use of a long, sharp needle in close proximity to the chest and abdominal
cavity and that it certainly qualifies as "incisive" if a body organ is "incised"
with this needle, which is a known complication. The Board has determined
that needle EMG does not involve the incisive use of needles. The proper use
of needle EMG avoids the insertion into undesired tissues or organ systems.
Consequently, needle EMG is not an incisive or surgical technique. Thorough
training in the use of needle EMG does include testing muscles proximal to
the chest and abdominal cavity. The Board's rules establish that a lack of
proper diligence or the gross inefficient practice of chiropractic can occur
if a chiropractor performs or attempts to perform a procedure for which they
are untrained by education or experience or if a chiropractor causes, permits,
or allows physical injury to a patient (§75.2 of this title, relating
to proper diligence and efficient practice of chiropractic). The risks associated
with the use of needle EMG are taught as part of all certification programs.
No change was made in response to this comment.
One commenter asked, regarding §75.17(c)(3)(A), why are chiropractors
still performing "paraspinal surface EMG" and argued that the procedure has
no medical validity. The Board disagrees. Studies have shown that surface
electromyography can be an acceptable tool for kinesiologic analysis of movement
disorders and for evaluating gait and posture displacements. While surface
EMG is not used to diagnosis muscle or nerve disease, it may be used dynamically
as a way to evaluate various biomechanical aspects of muscle activation and
firing patterns that relate human function. Consequently, surface EMG has
significant limitations when used as a way to diagnose diseases that relate
to muscle or nerve, but can evaluate some forms of movement patterns relating
to gait and biomechanics. No change was made in response to this comment.
One commenter noted that §75.17(c)(3)(A)(ii) should be revised to
read "on-site." The clause has been revised to read "on-site."
Several commenters stated that "diagnosis" as used under §75.17(d)
is not authorized under the Chiropractic Act and that the term should be deleted
from the rule and the rule should conform to the definition used in the Occupations
Code relating to the definition of chiropractic. Webster's Dictionary defines
"diagnosis" as meaning "(1)(a): the art or act of identifying a disease from
its signs and symptoms (b): the decision reached by diagnosis (2): a concise
technical description of a taxon (3)(a): investigation or analysis of the
cause or nature of a condition, situation, or problem (engine trouble) (b):
a statement or conclusion from such an analysis." Thus, the plain meaning
of "diagnosis" includes "using objective or subjective means to analyze, examine,
or evaluate." For decades, chiropractors have also been required by insurance
carriers, Medicare, Medicaid, and the workman's compensation system to provide
a diagnosis. No change was made in response to this comment.
One commenter suggested that in §75.17(d)(1) the phrase "may render
an analysis, diagnosis, or other opinion regarding the findings of examinations
and evaluations" should be replaced with "must render an analysis, diagnosis"
to ensure that, as first contact health care providers, chiropractors must
render an analysis and/or diagnosis. The requirement for rendering an analysis
is addressed under §75.2(a)(1)(A) of this chapter, relating to proper
diligence and efficient practice of chiropractic, which requires that a chiropractor
assess and evaluate a patient's status as part of the minimal acceptable standards
of chiropractic. No change was made in response to this comment.
One commenter said that simply stating under §75.17(e)(2) that acupuncture
is within the chiropractic scope of practice in this rule proposal does not
make it so. Acupuncture has long been part of the practice of chiropractic.
Post-graduate training in acupuncture is offered by the chiropractic colleges,
and the National Board of Chiropractic Examiners offers a national standardized
certification examination in acupuncture. In 1997, the Acupuncture Act was
amended to clearly allow the practice of acupuncture by chiropractors and
other licensed health care practitioners.
See
Tex.
Occ. Code §205.003. No change was made in response to this comment.
One commenter said that the Board has no legal authority to authorize chiropractors
to use "acupuncture" as proposed under §75.17(e)(2). The Acupuncture
act specifically does not apply to other health care professionals licensed
under other statutes, such as the Chiropractic Act. Tex. Occ. Code §205.003(a).
Acupuncture has long been part of the practice of chiropractic, and the use
of acupuncture by a chiropractor is limited to the purposes within the scope
of practice. No change was made in response to this comment.
One commenter asked if acupuncture, as described under §75.17(e)(2),
is limited to the biomedical condition of the spine or musculoskeletal system.
The practice of acupuncture by a chiropractor is limited by the Chiropractic
Act. See Texas Occupations Code §201.002(b). No change was made in response
to this comment.
One commenter asked if different acupuncture procedures under §75.17(e)(2)
require different training. The Board's existing rule regarding proper diligence
and efficient practice of chiropractic, §75.2 of this title, requires
that a chiropractor not perform or attempt to perform procedures in which
the chiropractor is untrained by education or experience. At this time, the
Board is not considering specific training requirements for the use of acupuncture,
but it may do so in the future. No change was made in response to this comment.
One commenter asked if there must be demonstrated competency before acupuncture
is used as described under §75.17(e)(2). Another commenter asked if chiropractors
should be required to demonstrate competency in acupuncture commensurate with
their training. The Board is the entity authorized to determine the competency
for all aspects of the practice of chiropractic in Texas. Chiropractors in
Texas have included acupuncture as part of their practice for decades without
complaint. Acupuncture is part of the curriculum at the chiropractic colleges.
In addition, the National Board of Chiropractic Examiners offers a national,
standardized certification examination in acupuncture and Texas Chiropractic
College offers a post-graduate 300-hour diplomate approved course in acupuncture,
in addition to the 4,500 didactic and clinical hours required for licensure.
The Board has not received complaints regarding the practice of acupuncture
by a chiropractor, and at the February 1, 2006, the Board heard testimony
that no malpractice claims had been made relating to the practice of acupuncture
by a chiropractor in Texas. The Board's existing rule regarding proper diligence
and efficient practice of chiropractic, §75.2 of this title, prohibits
a chiropractor from "performing or attempting to perform procedures in which
the chiropractor is untrained by education or experience." No change was made
in response to this comment.
One commenter asked if the educational requirements for the practice of
acupuncture should be specific and included under §75.17(e)(2). Testimony
at the public hearing on February 1, 2006, indicated that the Medical Board
and Physical Therapy Board do not require additional education before their
licenses may use acupuncture in their practices. Chiropractors have performed
acupuncture techniques on patients for decades. The Board's existing rule
regarding proper diligence and efficient practice of chiropractic, §75.2
of this title, requires that a chiropractor not perform or attempt to perform
procedures in which the chiropractor is untrained by education or experience.
The Board has not received complaints regarding the practice of acupuncture
by a chiropractor, and at the public hearing, the Board heard testimony that
no malpractice claims have been made relating to the practice of acupuncture
by a Texas chiropractor. No change was made in response to this comment.
Two commenters said that the use of a laser is not provided within the
scope of chiropractic and the scope of chiropractic should not be expanded
under §75.17(e)(2)(K) to include the use of lasers. The Department of
State Health Services has specified that chiropractors may use lasers. Specifically,
under §289.226(b)(11) of Title 25, relating to registration of radiation
machine use and service, chiropractors are identified as among the practitioners
of the healing arts. No change was made in response to this comment.
One commenter said that there is no additional training or certification
required under §75.17(e)(3) for acupuncture procedures and that the Acupuncture
Board noted there was a requirement relating to acupuncture in a prior draft
of the rule. The Board is contemplating a future rulemaking that would establish
additional training or certification for acupuncture. Acupuncture is used
by chiropractors in a number of ways, ranging from a simple application to
more sophisticated techniques. The Board is not proceeding with that rulemaking
at this time because it desires to carefully consider and deliberate on the
appropriate training requirements. No change was made in response to this
comment.
One commenter said that the invitation under §75.17(f) for persons
to continue to submit questions regarding scope to the Board ensures that
the scope of practice will continue to be defined by Board opinions contrary
to Legislative intent. The commenter apparently misinterprets the intent and
purpose of this Subsection (f). The Board recognizes that questions regarding
the scope of practice will continue to arise, particularly as this rule is
implemented and as new treatments are developed. The purpose of Subsection
(f) is to assist the Board in responding to whatever questions may arise and
to assist the Board in determining whether a question may be resolved under
this rule or whether the rule should be amended to address the question. No
change was made in response to this comment.
One commenter said that the Board erred in requesting under proposed §75.17(f)(3)
that persons with questions regarding whether a service or procedure is within
the scope of practice submit, among other things, an explanation of how the
service or procedure is consistent with either using subjective or objective
means to analyze, examine, or evaluate the biomechanical condition of the
spine and musculoskeletal system of the human body or performing nonsurgical,
nonincisive procedures. Such an explanation is intended only to provide the
Board with information to aid in evaluating whether a question may be resolved
under this rule or whether the rule should be amended to address the question.
No change was made in response to this comment.
AUTHORITY
The new rule is adopted under Texas Occupations Code §§201.152,
relating to rules, and 201.1525, relating to rules clarifying scope of chiropractic,
and 201.1526, relating to development of proposed rules regarding scope of
practice of chiropractic. Section 201.152 authorizes the Board to adopt rules
necessary to regulate the practice of chiropractic. Section 1525 mandates
that the Board adopt rules clarifying what activities are included within
the scope of the practice of chiropractic and what activities are outside
the scope. Section 1526 requires that the Board establish methods for seeking
input from persons who will be most affected by the proposed rule.
§75.17.Scope of Practice.
(a)
Aspects of Practice.
(1)
A person practices chiropractic if they
(A)
use objective or subjective means to analyze, examine,
or evaluate the biomechanical condition of the spine and musculoskeletal system
of the human body; or
(B)
perform nonsurgical, nonincisive procedures, including
adjustment and manipulation, to improve the subluxation complex or the biomechanics
of the musculoskeletal system.
(2)
The practice of chiropractic does not include:
(A)
incisive or surgical procedures;
(B)
the prescription of controlled substances, dangerous drugs,
or any other drug that requires a prescription; or
(C)
the use of x-ray therapy or therapy that exposes the body
to radioactive materials.
(3)
Needles may be used in the practice of chiropractic under
standards set forth by the Board but may not be used for procedures that are
incisive or surgical.
(A)
The use of a needle for a procedure is incisive if the
procedure results in the removal of tissue other than for the purpose of drawing
blood.
(B)
The use of a needle for a procedure is surgical if the
procedure is listed in the surgical section of the CPT Codebook.
(4)
This section does not apply to:
(A)
a health care professional licensed under another statute
of this state and acting within the scope of their license; or
(B)
any other activity not regulated by state or federal law.
(b)
Definitions. The following words and terms, when used in
this section, shall have the following meanings, unless the context clearly
indicates otherwise:
(1)
Board--the Texas Board of Chiropractic Examiners.
(2)
CPT Codebook--the American Medical Association's annual
Current Procedural Terminology Codebook (2004). The CPT Codebook has been
adopted by the Centers for Medicare and Medicaid Services of the United States
Department of Health and Human Services as Level I of the common procedure
coding system.
(3)
On-site--the presence of a licensed chiropractor in the
clinic, but not necessarily in the room, while a patient is undergoing an
examination or treatment procedure or service.
(4)
Practice of chiropractic--the description and terms set
forth under Texas Occupations Code §201.002, relating to the practice
of chiropractic.
(c)
Examination and Evaluation
(1)
In the practice of Chiropractic, licensees of this board
provide necessary examination and evaluation services to:
(A)
Determine the bio-mechanical condition of the spine and
musculoskeletal system of the human body including, but not limited to, the
following:
(i)
the health and integrity of the structures of the system;
(ii)
the coordination, balance, efficiency, strength, conditioning
and functional health and integrity of the system;
(iii)
the existence of the structural pathology, functional
pathology or other abnormality of the system;
(iv)
the nature, severity, complicating factors and effects
of said structural pathology, functional pathology or other abnormality of
the system;
(v)
the etiology of said structural pathology, functional pathology
or other abnormality of the system; and
(vi)
the effect of said structural pathology, functional pathology
or other abnormality of the system on the health of an individual patient
or population of patients;
(B)
Determine the existence of subluxation complexes of the
spine and musculoskeletal system of the human body and to evaluate their condition
including, but not limited to:
(i)
The nature, severity, complicating factors and effects
of said subluxation complexes;
(ii)
the etiology of said subluxation complexes; and
(iii)
The effect of said subluxation complexes on the health
of an individual patient or population of patients;
(C)
Determine the treatment procedures that are indicated in
the therapeutic care of a patient or condition;
(D)
Determine the treatment procedures that are contra-indicated
in the therapeutic care of a patient or condition; and
(E)
Differentiate a patient or condition for which chiropractic
treatment is appropriate from a patient or condition that is in need of care
from a medical or other class of provider.
(2)
To evaluate and examine individual patients or patient
populations, licensees of this board are authorized to use:
(A)
physical examinations;
(B)
diagnostic imaging;
(C)
laboratory examination;
(D)
electro-diagnostic testing;
(E)
sonography; and
(F)
other forms of testing and measurement.
(3)
Examination and evaluation services which require a license
holder to obtain additional training or certification, in addition to the
requirements of a basic chiropractic license, include:
(A)
Electro-neuro Diagnostic Testing training requirements
and standards (paraspinal surface electromyography excluded) include:
(i)
Board approved training consisting of one hundred and twenty
(120) hours of initial clinical and didactic training in the technical and
professional components of the procedures or completion of a neurology diplomate
program with sixty (60) hours of certification training in the technical and
professional components of the procedures (these hours may be applied to a
doctor's annual continuing education requirement);
(ii)
The professional component of these procedures may not
be delegated to a technician and must be directly performed by a qualified
and licensed doctor of chiropractic who must be on-site during the technical
component of the procedures;
(iii)
The technical component of these procedures may be delegated
to a technician if, said technician meets the training requirements of this
section and is a licensed health care provider authorized to provide those
services under Texas law;
(iv)
The technical component of surface (non-needle) procedures
may be delegated to a technician that has successfully completed Board approved
training consisting of sixty (60) hours of initial clinical and didactic training
in the technical component of the procedures; and
(v)
Procedures must be performed in a manner consistent with
generally accepted parameters, including clean needle techniques, standards
of the Center for Communicable Disease, and meet safe and professional standards.
(B)
Performance of radiologic procedures, which are authorized
under the Texas Chiropractic Act, Texas Occupations Code, Chapter 201, may
be delegated to an assistant who meets the training requirements set forth
under §78.1 of this title (relating to Registration of Chiropractic Radiologic
Technologists).
(4)
Examination and evaluation services, and the equipment
used for such services, which are outside the scope of chiropractic practice
include:
(A)
incisive or surgical procedures;
(B)
the prescription of controlled substances, dangerous drugs,
or any other drug that requires a prescription;
(C)
the use of x-ray therapy or therapy that exposes the body
to radioactive materials; or
(D)
other examination and evaluation services that are inconsistent
with the practice of chiropractic and with the examination and evaluation
services described under this subsection.
(d)
Analysis, Diagnosis, and Other Opinions
(1)
In the practice of chiropractic, licensees may render an
analysis, diagnosis, or other opinion regarding the findings of examinations
and evaluations. Such opinions could include, but are not limited to, the
following:
(A)
An analysis, diagnosis or other opinion regarding the biomechanical
condition of the spine or musculoskeletal system including, but not limited
to, the following:
(i)
the health and integrity of the structures of the system;
(ii)
the coordination, balance, efficiency, strength, conditioning
and functional health and integrity of the system;
(iii)
the existence of structural pathology, functional pathology
or other abnormality of the system;
(iv)
the nature, severity, complicating factors and effects
of said structural pathology, functional pathology, or other abnormality of
the system;
(v)
the etiology of said structural pathology, functional pathology
or other abnormality of the system; and
(vi)
the effect of said structural pathology, functional pathology
or other abnormality of the system on the health of an individual patient
or population of patients;
(B)
An analysis, diagnosis or other opinion regarding a subluxation
complex of the spine or musculoskeletal system including, but not limited
to, the following:
(i)
the nature, severity, complicating factors and effects
of said subluxation complex;
(ii)
the etiology of said subluxation complex; and
(iii)
the effect of said subluxation complex on the health
of an individual patient or population of patients;
(C)
An opinion regarding the treatment procedures that are
indicated in the therapeutic care of a patient or condition;
(D)
An opinion regarding the likelihood of recovery of a patient
or condition under an indicated course of treatment;
(E)
An opinion regarding the risks associated with the treatment
procedures that are indicated in the therapeutic care of a patient or condition;
(F)
An opinion regarding the risks associated with not receiving
the treatment procedures that are indicated in the therapeutic care of a patient
or condition;
(G)
An opinion regarding the treatment procedures that are
contraindicated in the therapeutic care of a patient or condition;
(H)
An opinion that a patient or condition is in need of care
from a medical or other class of provider;
(I)
An opinion regarding an individual's ability to perform
normal job functions and activities of daily living, and the assessment of
any disability or impairment;
(J)
An opinion regarding the biomechanical risks to a patient,
or patient population from various occupations, job duties or functions, activities
of daily living, sports or athletics, or from the ergonomics of a given environment;
and
(K)
Other necessary or appropriate opinions consistent with
the practice of chiropractic.
(2)
Analysis, diagnosis, and other opinions regarding the findings
of examinations and evaluations which are outside the scope of chiropractic
include:
(A)
incisive or surgical procedures;
(B)
the prescription of controlled substances, dangerous drugs,
or any other drug that requires a prescription;
(C)
the use of x-ray therapy or therapy that exposes the body
to radioactive materials; or
(D)
other analysis, diagnosis, and other opinions that are
inconsistent with the practice of chiropractic and with the analysis, diagnosis,
and other opinions described under this subsection.
(e)
Treatment Procedures and Services
(1)
In the practice of chiropractic, licensees recommend, perform
or oversee the performance of the treatment procedures that are indicated
in the therapeutic care of a patient or patient population in order to:
(A)
Improve, correct, or optimize the biomechanical condition
of the spine or musculoskeletal system of the human body including, but not
limited to, the following:
(i)
the health and integrity of the structures of the musculoskeletal
system; and
(ii)
the coordination, balance, efficiency, strength, conditioning,
and functional health and integrity of the musculoskeletal system;
(B)
Promote the healing of, recovery from, or prevent the development
or deterioration of abnormalities of the biomechanical condition of the spine
or musculoskeletal system of the human body including, but not limited to,
the following:
(i)
the structural pathology, functional pathology, or other
abnormality of the musculoskeletal system;
(ii)
the effects and complicating factors of any structural
pathology, functional pathology, or other abnormality of the musculoskeletal
system;
(iii)
the etiology of any structural pathology, functional
pathology, or other abnormality of the musculoskeletal system; and
(iv)
the effect of any structural pathology, functional pathology,
or other abnormality of the musculoskeletal system on the health of an individual
patient or population of patients; and
(C)
Promote the healing of, recovery from, or prevent the development
or deterioration of a subluxation complex of the spine or musculoskeletal
system, including, but not limited to, the following:
(i)
the structural pathology, functional pathology, or other
abnormality of a subluxation complex;
(ii)
the effects and complicating factors of any structural
pathology, functional pathology, or other abnormality of a subluxation complex;
(iii)
the etiology of any structural pathology, functional
pathology, or other abnormality of a subluxation complex; and
(iv)
the effect of any structural pathology, functional pathology,
or other abnormality of a subluxation complex on the health of an individual
patient or population of patients.
(2)
In order to provide therapeutic care for a patient or patient
population, licensees are authorized to use:
(A)
osseous and soft tissue adjustment and manipulative techniques;
(B)
physical and rehabilitative procedures and modalities;
(C)
acupuncture and other reflex techniques;
(D)
exercise therapy;
(E)
patient education;
(F)
advice and counsel;
(G)
diet and weight control;
(H)
immobilization;
(I)
splinting;
(J)
bracing;
(K)
cold or low-level light laser;
(L)
durable medical goods and devices;
(M)
homeopathic and botanical medicines, including vitamins,
minerals; phytonutrients, antioxidants, enzymes, neutraceuticals, and glandular
extracts;
(N)
non-prescription drugs;
(O)
referral of patients to other doctors and health care providers;
and
(P)
other treatment procedures and services consistent with
the practice of chiropractic.
(3)
The treatment procedures and services provided by a licensee
which are outside of the scope of practice include:
(A)
incisive or surgical procedures;
(B)
the prescription of controlled substances, dangerous drugs,
or any other drug that requires a prescription;
(C)
the use of x-ray therapy or therapy that exposes the body
to radioactive materials; or
(D)
other treatment procedures and services that are inconsistent
with the practice of chiropractic and with the treatment procedures and services
described under this subsection.
(f)
Questions Regarding Scope of Practice. Further questions
regarding whether a service or procedure is within the scope of practice and
this rule may be submitted in writing to the Board and should contain the
following information:
(1)
a detailed description of the service or procedure that
will provide the Board with sufficient background information and detail to
make an informed decision;
(2)
information on the use of the service or procedure by chiropractors
in Texas or in other jurisdictions; and
(3)
an explanation of how the service or procedure is consistent
with either:
(A)
using subjective or objective means to analyze, examine,
or evaluate the biomechanical condition of the spine and musculoskeletal system
of the human body; or
(B)
performing nonsurgical, nonincisive procedures, including
adjustment and manipulation, to improve the subluxation complex or the biomechanics
of the musculoskeletal system.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on May 22, 2006.
TRD-200602847
Glenn Parker
Executive Director
Texas Board of Chiropractic Examiners
Effective date: June 11, 2006
Proposal publication date: December 16, 2005
For further information, please call: (512) 305-6709
Chapter 153.
RULES RELATING TO PROVISIONS OF THE TEXAS APPRAISER LICENSING AND CERTIFICATION ACT
22 TAC §§153.1, 153.9, 153.13, 153.18
The Texas Appraiser Licensing and Certification Board (TALCB)
adopts the amendments to §§153.1, 153.9, 153.13, and 153.18, concerning
Rules Relating to Provisions of the Texas Appraiser Licensing and Certification
Act. Sections 153.13 and 153.18 are adopted with changes to the proposed text
as published in the March 24, 2006, issue of the
Texas Register
(31 TexReg 2365). Sections 153.1 and §153.9 are
adopted without change to the proposed text as published.
The adopted amendment to §153.1 amends the definition of a fundamental
real estate course to tie it specifically to the courses recognized by the
Appraiser Qualifications Board (AQB) as qualifying education. Section 153.9
adopts an amendment to the legal question on all applications relating to
civil judgments rendered. Section 153.13 adopts amendments that clarify that
fundamental or qualifying education courses must be approved by the Appraiser
Qualifications or offered by an accredited college or university. It also
simplifies the process for obtaining TALCB course approval and makes the period
for which a course is approved the same as the AQB approval period. The proposed
language to §153.13(j) was adopted with changes to make it consistent
with the AQB criteria. The adopted amendments to §153.18 provide that
the Appraiser Continuing Education (ACE) classroom courses must either have
AQB approval or be approved by another state appraiser licensing and certification
board. ACE distance courses must be approved by the AQB or be offered by an
accredited college or university.
One comment was received from Ben Henson, Executive Director of the Appraisal
Subcommittee suggesting that the Board not adopt the proposed amendment to §153.18(c)
until the Appraiser Qualifications Board has finalized its interpretation.
The Board tabled adoption of this amendment.
The amendments are adopted under the Texas Appraiser Licensing
and Certification Act, Subchapter D, Board Powers and Duties (Occupations
Code, Chapter 1103), which provides the board with authority to adopt rules
under §1103.151, Rules Relating to Certification and Licenses.
§153.13.Educational Requirements.
(a)
General Real Estate Appraiser Certification.
(1)
Applicants for General Real Estate Appraiser Certification
whose application is received by the board prior to November 1, 2007 must
have successfully completed 180 classroom hours in courses approved by the
board which meet the requirements as set out in subsections (e) - (o) of this
section. Of these 180 classroom hours, at least 90 classroom hours must be
in fundamental real estate appraisal courses specifically approved by the
board, and at least 15 classroom hours must be in a class devoted to the Uniform
Standards of Professional Appraisal Practice completed within two years prior
to submission of the application. At least 30 classroom hours of the fundamental
real estate appraisal course requirements must be in courses with emphasis
on the appraisal of non-residential properties.
(2)
Applicants for General Real Estate Appraiser Certification
whose application is received by the board after October 31, 2007 shall meet
all educational requirements set forth by the Appraiser Qualifications Board.
(b)
Residential Real Estate Appraiser Certification.
(1)
Applicants for Residential Real Estate Appraiser Certification
whose application is received by the board prior to November 1, 2007 must
have successfully completed 120 classroom hours in courses approved by the
board which meet the requirements as set out in subsections (e) - (o) of this
section. Of these 120 classroom hours, at least 60 classroom hours must be
in fundamental real estate appraisal courses specifically approved by the
board, and at least 15 classroom hours must be in a class devoted to the Uniform
Standards of Professional Appraisal Practice completed within two years prior
to submission of the application.
(2)
Applicants for Residential Real Estate Appraiser Certification
whose application is received by the board after October 31, 2007 shall meet
all educational requirements set forth by the Appraiser Qualifications Board.
(c)
Real Estate Appraiser License or Provisional License.
(1)
Applicants for a Real Estate Appraiser License or Provisional
License whose application is received by the board prior to November 1, 2007
must have successfully completed 90 classroom hours in courses approved by
the board which meet the requirements as set out in subsections (e) - (o)
of this section. Of these 90 classroom hours, at least 40 classroom hours
must be in fundamental real estate appraisal courses specifically approved
by the board, and at least 15 classroom hours must be in a class devoted to
the Uniform Standards of Professional Appraisal Practice completed within
two years prior to submission of the application.
(2)
Applicants for Real Estate Appraiser License or Provisional
License whose application is received by the board after October 31, 2007
shall meet all educational requirements set forth by the Appraiser Qualifications
Board.
(d)
Appraiser Trainee. Effective with all applications received
by the board after February 28, 2006, an applicant for an authorization as
an Appraiser Trainee must meet all educational requirements set forth in the
guidelines recommended by the Appraiser Qualifications Board.
(e)
The board may accept a course of study to satisfy educational
requirements for certification or licensing established by the Act or by this
section if the board has approved the course and determined it to be a course
related to real estate appraisal.
(f)
The board may approve courses submitted or to be submitted
by applicants for appraiser certification upon a determination of the board
that:
(1)
the subject matter of the course was appraisal related;
provided that core real estate courses set forth in Texas Civil Statutes,
Article 6573a, 7(a)(1) and (2) shall be deemed appraisal-related;
(2)
the course was offered by an accredited college or university,
or the course was approved by the Appraiser Qualifications Board under its
course approval process as a qualifying education course;
(3)
the applicant obtained credit received in a classroom presentation
the hours of instruction for which credit was given and successfully completed
a final examination for course credit except as specified in subsection (k)
of this section (relating to distance education); and
(4)
the course was at least 15 classroom hours in duration,
which includes time devoted to examinations which are considered to be part
of the course.
(g)
The board may require an applicant to furnish materials
such as course outlines, syllabi, course descriptions or official transcripts
to verify course content or credit.
(h)
Course providers may obtain prior approval of a course
by filing forms prescribed by the board and submitting a letter indicating
that the course has been approved by the Appraiser Qualifications Board under
its course approval process. Such prior approval of courses will remain in
effect for a period commensurate with the period of the approval granted by
the Appraiser Qualifications Board.
(i)
The board shall accept classroom hour units of instruction
as shown on the transcript or other document evidencing course credit if the
transcript reflects the actual hours of instruction the student received.
Fifteen classroom hours of credit may be awarded for one semester hour of
credit from an acceptable provider. Ten classroom hours of credit may be awarded
for one quarter hour of credit from an acceptable provider. Ten classroom
hours of credit may be awarded for each continuing education credit from an
acceptable provider. The board may not accept courses repeated within three
years of the original offering unless the subject matter has changed significantly.
(j)
Instructors who are also certified or licensed appraisers
may receive continuing education credit consistent with the criteria adopted
by the Appraiser Qualifications Board. Credit for instructing any given course
or seminar can only be awarded once during a continuing education cycle.
(k)
Distance education courses may be acceptable to meet the
classroom hour requirement, or its equivalent, provided that the course is
approved by the board and meets one of the following conditions listed in
paragraphs (1) - (3) of this subsection.
(1)
the course must have been presented by an accredited college
or university that offers distance education programs in other disciplines;
and
(A)
the person has successfully completed a written examination
administered to the positively identified person at a location and proctored
by an official approved by the college or university; and
(B)
the content and length of the course must meet the requirements
for real estate appraisal related courses established by this chapter and
by the requirements for qualifying education established by the Appraiser
Qualifications Board of the Appraisal Foundation and is equivalent to a minimum
of 15 classroom hours.
(2)
The course has received the approval for college credit
or has been approved under the AQB Course Approval program; and
(A)
the person successfully completes a written examination
proctored by an official approved by the presenting entity;
(B)
the course meets the requirements for qualifying education
established by the Appraiser Qualifications Board and is equivalent to the
minimum of 15 classroom hours.
(3)
A minimum time equal to the number of hours of credit must
elapse from the date of course enrollment until its completion.
(l)
"In-house" education and training is not acceptable for
meeting the educational requirements for certification or licensure.
(m)
To be acceptable for meeting the Uniform Standards of Professional
Appraisal Practice (USPAP) educational requirement, a course must:
(1)
Be devoted to the Uniform Standards of Professional Appraisal
Practice (USPAP) with a minimum of 15 classroom hours of instruction;
(2)
Use the current edition of the Uniform Standards of Professional
Appraisal Practice (USPAP) promulgated by the Appraisal Standards Board of
the Appraisal Foundation;
(3)
Provide each student with his or her own permanent copy
of the current Uniform Standards of Professional Appraisal Practice (USPAP)
promulgated by the Appraisal Standards Board of the Appraisal Foundation;
and
(4)
utilize the "National Uniform Standards of Professional
Appraisal Practice (USPAP) Course" promulgated by the Appraisal Foundation,
including the Student Manual and Instructor Manual or an equivalent USPAP
course as determined by the AQB.
(n)
Courses specifically approved by the Appraiser Qualifications
Board (AQB) of the Appraisal Foundation, provided that the educational provider
has notified the board of the AQB approval.
(o)
Neither current members of the Texas Appraiser Licensing
and Certification Board nor those board staff engaged in the approval of courses
or educational qualifications of applicants, certificate holders or licensees
shall be eligible to teach or guest lecture as part of an approved appraiser
qualifying or continuing education course.
§153.18.Appraiser Continuing Education.
(a)
Renewing a Certification or License. An appraiser must
successfully complete the equivalent of at least 28 classroom hours of appraiser
continuing education (ACE) courses approved by the board during the two year
period preceding the expiration of the certification or license. Renewals
shall include a minimum of seven classroom hours devoted to the Uniform Standards
of Professional Appraisal Practice (USPAP). The courses must comply with the
requirements set out in subsection (d) of this section.
(b)
Renewing an Appraiser Trainee Approval.
(1)
For a trainee Whose Application Was Accepted by the Board
Prior to March 1, 2006. As a condition for renewing an appraiser trainee authorization,
a trainee must successfully complete educational courses during the one-year
period preceding the expiration of the appraiser trainee authorization being
renewed. The courses must comply with the fundamental education requirements
for application for licensing and certification as set out in §153.13(f)
- (o) of this title (relating to Educational Requirements):
(A)
For the first annual renewal and every other annual renewal
thereafter (third, firth, seventh, etc) a total of 45 classroom hours which
shall include a minimum of 30 classroom hours of fundamental real estate appraisal
courses and 15 classroom hours in a course devoted to the USPAP. The courses
must specifically be approved by the board and shall include successful completion
of an examination; and
(B)
For the second annual renewal and every other annual renewal
thereafter (fourth, sixth, etc.), a minimum of 30 classroom hours of fundamental
real estate appraisal courses specifically approved by the board, which shall
include the successful completion of an examination.
(2)
For a Trainee Whose Application Was Accepted by the Board
After February 28, 2006. As a condition for renewing an appraiser trainee
authorization, a trainee shall be required to successfully complete 14 classroom
hours of appraiser continuing education courses with each annual renewal.
The renewal requirement includes successful completion of a 7 hour national
USPAP update course, or the equivalent, every two years.
(c)
The appraiser continuing education requirement as set forth
in §153.17 of this title (relating to Renewal of Certification, License
or Trainee Approval) for a person previously licensed or certified by the
board under this act who is on active duty in the United States armed forces
and serves in this capacity outside the State of Texas are deferred until
the next renewal of a license or certification provided the person furnishes
a copy of official orders or other official documentation acceptable to the
board showing that the person was on active duty outside the state during
the person's last renewal period.
(d)
In approving ACE courses, the board shall base its review
and approval of appraiser continuing education courses upon the then current
appraiser qualifications criteria of the Appraiser Qualifications Board (AQB).
(1)
The purpose of ACE is to ensure that certified and licensed
appraisers participate in programs that maintain and increase their skill,
knowledge, and competency in real estate appraising.
(2)
The following types of educational offerings that may be
accepted for meeting the ACE requirements are listed in subparagraphs (A)
- (H) of this paragraph:
(A)
A course that meets the requirements for certification
or licensing also may be accepted for meeting ACE provided:
(i)
The course is devoted to one or more of the appraisal related
topics of the then current appraiser qualifications criteria of the Appraiser
Qualifications Board (AQB) for continuing education;
(ii)
the course was not repeated within a three year period;
and
(iii)
the educational offering is at least two hours in length.
(B)
The board shall accept as continuing education any continuing
education offering that has been approved by the Appraiser Qualifications
Board course approval process or by another state appraiser licensing and
certification board. Course providers may obtain prior approval of continuing
education offerings by filing forms prescribed by the board and submitting
a letter indicating that the course has been approved by the Appraiser Qualifications
Board under its course approval process or by another state appraiser licensing
and certification board.
(C)
Distance education courses, provided that the course is
approved by the board and the course either has been presented by an accredited
college or university that offers distance education programs in other disciplines,
or has been approved the Appraiser Qualifications Board under its course approval
process and the student successfully completed a written examination proctored
by an official approved by the presenting college or university or by the
sponsoring organization consistent with the requirements of the course accreditation.
A minimum time equal to the number of hours of credit must elapse from the
date of course enrollment until its completion.
(D)
"In-house" education and training are not acceptable for
meeting the appraiser continuing education (ACE) requirements.
(E)
To be acceptable for meeting the Uniform Standards of Professional
Appraisal Practice (USPAP), appraiser continuing education (ACE) requirement,
a course must:
(i)
be the National USPAP Update Course or National USPAP Course
or its equivalent as determined by the AQB;
(ii)
use the current edition of the Uniform Standards of Professional
Appraisal Practice (USPAP) promulgated by the Appraisal Standards Board of
the Appraisal Foundation;
(iii)
provide each student with his or her own permanent copy
of the current Uniform Standards of Professional Appraisal Practice (USPAP)
promulgated by the Appraisal Standards Board of the Appraisal Foundation;
additionally,
(iv)
providers may include up to one additional hour of supplemental
Texas specific information. This may include such topics as the TALCB Act,
TALCB Rules, processes and procedures, enforcement issues, or other topics
deemed to be appropriate by the board.
(F)
As part of the 28 classroom hour ACE requirement, an appraiser
must successfully complete a minimum of seven classroom hours of instruction
devoted to the USPAP before each renewal.
(G)
Appraiser continuing education credits may also be granted
for participation, other than as a student, in real estate appraisal educational
processes and programs. Examples of activities for which credit may be granted
are teaching, educational program development, authorship of real estate appraisal
textbooks, or similar activities that are determined by the board to be equivalent
to obtaining appraiser continuing education. Appraisal experience may not
be substituted for ACE.
(H)
Neither current members of the Texas Appraiser Licensing
and Certification Board nor those board staff engaged in the approval of courses
or educational qualifications of applicants, certificate holders or licensees
shall be eligible to teach or guest lecture as part of an approved appraiser
qualifying or continuing education course.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on May 17, 2006.
TRD-200602800
Wayne Thorburn
Commissioner
Texas Appraiser Licensing and Certification Board
Effective date: June 6, 2006
Proposal publication date: March 24, 2006
For further information, please call: (512) 465-3950
Chapter 279.
INTERPRETATIONS
22 TAC §279.6
The Texas Optometry Board adopts the repeal of Chapter 279, §279.6,
concerning Interpretation of Requirements of Federal Contact Lens Prescription
Law, without changes to the proposal as published in the March 17, 2006, issue
of the
Texas Register
(31 TexReg 1871).
The text of the repealed rule is now contained in §279.2, under the
authority of House Bill 1025, 79th Legislature, Regular Session.
No comments were received regarding repeal.
The repeal is adopted under the Texas Optometry Act, Texas Occupations
Code, §351.151, and the Contact Lens Prescription Act, Texas Occupations
Code, §§353.002, 353.005, 353.1015, 353.101, 353.104, 353.152, 353.156,
353.158 and 353.204 as amended or added by House Bill 1025, 79th Legislature,
Regular Session, and federal law, 15 U.S.C. §§7601 - 7610.
The Texas Optometry Board interprets §351.151 as authorizing the adoption
of procedural and substantive rules for the regulation of the optometric profession.
The Board interprets House Bill 1025 to require licensees to issue contact
lens prescriptions at the completion of a contact lens exam and to verify
prescriptions when requested by a dispenser authorized by the patient to obtain
the verification, and requires the agency to adopt rules. Section 353.204
authorizes the agency to discipline optometrists and therapeutic optometrists
for violations of the Contact Lens Prescription Act. The agency interprets
the requirements of 15 U.S.C. §§7601 - 7610 to be similar to the
requirements of House Bill 1025.
No other sections are affected by this repeal.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 17, 2006.
TRD-200602798
Chris Kloeris
Executive Director
Texas Optometry Board
Effective date: June 6, 2006
Proposal publication date: March 17, 2006
For further information, please call: (512) 305-8502
Chapter 283.
LICENSING REQUIREMENTS FOR PHARMACISTS
22 TAC §§283.2, 283.4, 283.6, 283.8, 283.9
The Texas State Board of Pharmacy adopts §283.2, concerning
Definitions, §283.4, concerning Internship Requirements, §283.6
concerning Preceptor Requirements, §283.8 concerning Reciprocity Requirements,
and §283.9 concerning Fee Requirements for licensure by Examination,
Score Transfer, and Reciprocity. The amendments are adopted without change
to the proposed text of §§283.2, 283.4, 283.6, and 283.8, as published
in the March 31, 2006, issue of the
Texas Register
(31 TexReg 2810). The amendment to §283.9 is adopted with changes
to proposed text as published in the March 31, 2006, issue of the
Texas Register
(31 TexReg 2810). The change is based on staff recommendation
to clarify the timeframe for an individual to notify the board of an emergency
prior to taking an examination.
The amendments to §§283.2, 283.4, and 283.6, define a healthcare
professional and specify the requirements for a healthcare professional to
serve as a preceptor in accordance with S.B. 410. The amendments to §283.8,
allow a pharmacist to reciprocate to Texas with a current license in another
state. The amendments to §283.9, allow the Board to refund half of the
examination fee (which is currently $50) paid by an applicant if the applicant
provides advance notice to the Board if the applicant is unable to take the
examination due to an emergency.
No comments were received.
The amendments are adopted under §§551.002, 554.051,
558.057, 558.059 and 558.101, of the Texas Pharmacy Act (Chapters 551 - 566
and 568 - 569, Texas Occupations Code). The Board interprets §551.002
as authorizing the agency to protect the public through the effective control
and regulation of the practice of pharmacy. The Board interprets §554.051(a)
as authorizing the agency to adopt rules for the proper administration and
enforcement of the Act. The Board interprets §558.057 as authorizing
the agency to adopt rules regarding the requirements of a preceptor. The Board
interprets §558.059 as authorizing the agency to provide examination
fee refunds under conditions. The Board interprets §558.101 as authorizing
the agency to adopt rules regarding the qualifications to reciprocate a pharmacist
license to Texas.
The statutes affected by this rule: Texas Pharmacy Act, Chapters 551 -
566 and 568 - 569, Texas Occupations Code.
§283.9.Fee Requirements for Licensure by Examination, Score Transfer and Reciprocity.
(a)
The fees for licensure by examination, score transfer,
and reciprocity shall include one exam administration. The fees are as follows:
(1)
Examination Fee. The fee to submit an application for licensure
by examination will include:
(A)
An examination processing fee of $52, which is to be paid
to the Texas State Board of Pharmacy and includes the processing of the Texas
application.
(B)
NAPLEX administrative and examination fees as determined
by NABP, which are to be paid to NABP in accordance with NABP policy.
(C)
MPJE administrative and examination fees as determined
by NABP, which are to be paid to NABP in accordance with NABP policy.
(2)
Reciprocity Fee. The fee to submit an application for licensure
by reciprocity will include.
(A)
A reciprocity fee of $255, which is to be paid to the Texas
State Board of Pharmacy.
(B)
MPJE administrative and examination fees as determined
by NABP, which are to be paid to NABP in accordance with NABP policy.
(C)
A license verification fee as determined by NABP, which
is to be paid to NABP in accordance with NABP policy.
(3)
Score Transfer Fee. The fees to transfer a score to Texas,
using the NAPLEX Score Transfer system will include:
(A)
An examination processing fee of $52, which is to be paid
to the Texas State Board of Pharmacy and includes the processing of the Texas
application.
(B)
MPJE administrative and examination fees as determined
by NABP, which are to be paid to NABP in accordance with NABP policy.
(C)
A score transfer fee as determined by NABP, which is to
be paid to NABP in accordance with NABP policy.
(b)
If an applicant fails an examination or is required to
take an examination by the Board, the fees for one examination are as stated
in subsection (a) of this section.
(c)
Rescheduling or canceling an examination appointment.
(1)
Refunds for fees charged by NABP for the administration
of the NAPLEX and MPJE are in accordance with NABP policy. Rescheduling of
an examination appointment shall be in accordance with NABP policy
(2)
The Board may refund fifty percent of an examination fee
paid to the Board by an applicant if the applicant:
(A)
provides advance notice of their inability to take the
examination prior to the board providing authorization to take the examination;
or
(B)
is unable to take the examination due to an emergency situation
including but not limited to a manmade or natural disaster, documented serious
medical illness, or other circumstance deemed an emergency by the Executive
Director of the Board.
(d)
A person who takes NAPLEX and/or the Texas Pharmacy Jurisprudence
Examination will be notified of the results of the examination(s) within two
weeks of receipt of the results of the examination(s) from the testing service.
If both NAPLEX and the Texas Pharmacy Jurisprudence Examination are taken,
the applicant will not be notified until the results of both examinations
have been received. Such notification will be made within two weeks after
receipt of the results of both examinations.
(e)
Once an applicant has successfully completed all requirements
of licensure, the applicant will be notified of licensure as a pharmacist
and of his or her pharmacist license number and the following is applicable.
(1)
The notice letter shall serve as authorization for the
person to practice pharmacy in Texas for a period of 30 days from the date
of the notice letter.
(2)
The applicant shall complete a pharmacist license application
and pay one pharmacist licensee fee as specified in §295.5 of this title
(relating to Pharmacist License or Renewal Fees).
(3)
The provisions of §295.7 of this title (relating to
Pharmacist License Renewal) apply to the timely receipt of an application
and licensure fee.
(4)
If application and payment of the pharmacist license fee
are not received by the board within 30 days from the date of the notice letter,
the person's license to practice pharmacy shall expire. A person may not practice
pharmacy with an expired license. The license may be renewed according to
the following schedule.
(A)
If the notice letter has been expired for 90 days or less,
the person may become licensed by making application and paying to the board
one license fee and a fee that is one-half of the examination fee for the
license.
(B)
If the notice letter has been expired for more than 90
days but less than one year, the person may become licensed by making application
and paying to the board all unpaid renewal fees and a fee that is equal to
the examination fee for the license.
(C)
If the notice letter has been expired for one year or more,
the person shall apply for a new license.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on May 22, 2006.
TRD-200602853
Gay Dodson, R. Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: June 11, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
Subchapter B. COMMUNITY PHARMACY (CLASS A)
22 TAC §291.33
The Texas State Board of Pharmacy adopts amendments to §291.33
concerning Operational Standards. The amendments are adopted with changes
to proposed text as published in the March 31, 2006, issue of the
Texas Register
(31 TexReg 2816).
The amendments clarify the alternative labeling requirements for drugs
dispensed or administered to a patient who is in a nursing home.
Written comments were received from the Coalition for Nurses in Advanced
Practice (CNAP). CNAP suggested that the alternative labeling requirements
be clarified to require the pharmacist include the name of the advanced practice
nurse or physician assistant if the prescription drug order was signed by
either of those types of practitioners. The Board agreed with the comments
and clarified the rule to require the name of advanced practice nurses or
physician assistants on the label when applicable.
The amendments are adopted under §551.002 and §554.051
of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code) and §483.042 of the Texas Dangerous Drug Act (Health and Safety
Code). The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act. The
Board interprets §483.042 as authorizing the agency to adopt rules for
the labeling of drugs dispensed or administered to a patient who is institutionalized.
The statutes affected by this rule: Texas Pharmacy Act, Chapters 551 -
566 and 568 - 569, Texas Occupations Code; Texas Dangerous Drug Act, Chapter
483, Health and Safety Code.
§291.33.Operational Standards.
(a)
Licensing requirements.
(1)
A Class A pharmacy shall register annually or biennially
with the board on a pharmacy license application provided by the board, following
the procedures specified in §291.1 of this title (relating to Pharmacy
License Application).
(2)
A Class A pharmacy which changes ownership shall notify
the board within ten days of the change of ownership and apply for a new and
separate license as specified in §291.4 of this title (relating to Change
of Ownership).
(3)
A Class A pharmacy which changes location and/or name shall
notify the board within ten days of the change and file for an amended license
as specified in §291.2 of this title (relating to Change of Location
and/or Name).
(4)
A Class A pharmacy owned by a partnership or corporation
which changes managing officers shall notify the board in writing of the names
of the new managing officers within ten days of the change, following the
procedures in §291.3 of this title (relating to Change of Managing Officers).
(5)
A Class A pharmacy shall notify the board in writing within
ten days of closing, following the procedures in §291.5 of this title
(relating to Closed Pharmacies).
(6)
A separate license is required for each principal place
of business and only one pharmacy license may be issued to a specific location.
(7)
A fee as specified in §291.6 of this title (relating
to Pharmacy License Fees) will be charged for the issuance and renewal of
a license and the issuance of an amended license.
(8)
A Class A pharmacy, licensed under the provisions of the
Act, §560.051(a)(1), which also operates another type of pharmacy which
would otherwise be required to be licensed under the Act, §560.051(a)(2)
concerning Nuclear Pharmacy (Class B), is not required to secure a license
for such other type of pharmacy; provided, however, such licensee is required
to comply with the provisions of §291.51 of this title (relating to Purpose), §291.52
of this title (relating to Definitions), §291.53 of this title (relating
to Personnel), §291.54 of this title (relating to Operational Standards),
and §291.55 of this title (relating to Records), contained in Nuclear
Pharmacy (Class B), to the extent such sections are applicable to the operation
of the pharmacy.
(9)
A Class A (community) pharmacy engaged in the compounding
of non-sterile pharmaceuticals shall comply with the provisions of §291.25
of this title (relating to Pharmacies Compounding Non-sterile Pharmaceuticals).
(10)
A Class A (community) pharmacy engaged in the compounding
of sterile pharmaceuticals shall comply with the provisions of §291.26
of this title (relating to Pharmacies Compounding Sterile Pharmaceuticals).
(11)
A Class A (Community) pharmacy engaged in the provision
of remote pharmacy services, including storage and dispensing of prescription
drugs, shall comply with the provisions of §291.20 of this title (relating
to Remote Pharmacy Services).
(12)
Class A (Community) pharmacy engaged in centralized prescription
dispensing and/or prescription drug or medication order processing shall comply
with the provisions of §291.37 of this title (relating to Centralized
Prescription Dispensing) and/or §291.38 of this title (relating to Centralized
Prescription Drug or Medication Order Processing).
(b)
Environment.
(1)
General requirements.
(A)
The pharmacy shall be arranged in an orderly fashion and
kept clean. All required equipment shall be clean and in good operating condition.
(B)
A Class A pharmacy shall have a sink with hot and cold
running water within the pharmacy, exclusive of restroom facilities, available
to all pharmacy personnel and maintained in a sanitary condition.
(C)
A Class A pharmacy which serves the general public shall
contain an area which is suitable for confidential patient counseling.
(i)
Such counseling area shall:
(I)
be easily accessible to both patient and pharmacists and
not allow patient access to prescription drugs;
(II)
be designed to maintain the confidentiality and privacy
of the pharmacist/patient communication.
(ii)
In determining whether the area is suitable for confidential
patient counseling and designed to maintain the confidentiality and privacy
of the pharmacist/patient communication, the board may consider factors such
as the following:
(I)
the proximity of the counseling area to the check-out or
cash register area;
(II)
the volume of pedestrian traffic in and around the counseling
area;
(III)
the presence of walls or other barriers between the counseling
area and other areas of the pharmacy; and
(IV)
any evidence of confidential information being overheard
by persons other than the patient or patient's agent or the pharmacist or
agents of the pharmacist.
(D)
The pharmacy shall be properly lighted and ventilated.
(E)
The temperature of the pharmacy shall be maintained within
a range compatible with the proper storage of drugs; the temperature of the
refrigerator shall be maintained within a range compatible with the proper
storage of drugs requiring refrigeration.
(F)
Animals, including birds and reptiles, shall not be kept
within the pharmacy and in immediately adjacent areas under the control of
the pharmacy. This provision does not apply to fish in aquariums, guide dogs
accompanying disabled persons, or animals for sale to the general public in
a separate area that is inspected by local health jurisdictions.
(2)
Security.
(A)
Each pharmacist while on duty shall be responsible for
the security of the prescription department, including provisions for effective
control against theft or diversion of prescription drugs, and records for
such drugs.
(B)
The prescription department shall be locked by key or combination
so as to prevent access when a pharmacist is not on-site. However, the pharmacist-in-charge
may designate persons who may enter the pharmacy to perform functions designated
by the pharmacist-in-charge (e.g., janitorial services).
(3)
Temporary absence of pharmacist.
(A)
If a pharmacy is staffed by a single pharmacist, the pharmacist
may leave the prescription department for breaks and meal periods without
closing the prescription department and removing pharmacy technicians and
other pharmacy personnel from the prescription department provided the following
conditions are met:
(i)
at least one registered pharmacy technician remains in
the prescription department;
(ii)
the pharmacist remains on-site at the licensed location
of the pharmacy and available for an emergency;
(iii)
the absence does not exceed 30 minutes at a time and
a total of one hour in a 12 hour period;
(iv)
the pharmacist reasonably believes that the security of
the prescription department will be maintained in his or her absence. If in
the professional judgment of the pharmacist, the pharmacist determines that
the prescription department should close during his or her absence, then the
pharmacist shall close the prescription department and remove the pharmacy
technicians or other pharmacy personnel from the prescription department during
his or her absence; and
(v)
a notice is posted which includes the following information:
(I)
the fact that pharmacist is on a break and the time the
pharmacist will return; and
(II)
the fact that pharmacy technicians may begin the processing
of prescription drug orders or refills brought in during the pharmacist absence
but the prescription or refill may not be delivered to the patient or the
patient's agent until the pharmacist returns and verifies the accuracy of
the prescription.
(B)
During the time a pharmacist is absent from the prescription
department, only pharmacy technicians who have completed the pharmacy's training
program may perform the following duties, provided a pharmacist verifies the
accuracy of all acts, tasks, and functions performed by the pharmacy technicians
prior to delivery of the prescription to the patient or the patient's agent:
(i)
initiating and receiving refill authorization requests;
(ii)
entering prescription data into a data processing system;
(iii)
taking a stock bottle from the shelf for a prescription;
(iv)
preparing and packaging prescription drug orders (i.e.,
counting tablets/capsules, measuring liquids and placing them in the prescription
container);
(v)
affixing prescription labels and auxiliary labels to the
prescription container provided the pharmacy technician:
(I)
has completed the training requirements outlined in §297.6
of this title (relating to Pharmacy Technician Training); and
(II)
is registered as a pharmacy technician within the provisions
of §297.3 of this title (relating to Registration Requirements); and
(vi)
prepackaging and labeling prepackaged drugs.
(C)
Upon return to the prescription department, the pharmacist
shall:
(i)
conduct a drug regimen review as specified in subsection
(c)(2) of this section; and
(ii)
verify the accuracy of all acts, tasks, and functions
performed by the pharmacy technicians prior to delivery of the prescription
to the patient or the patient's agent.
(D)
An agent of the pharmacist may deliver a prescription drug
order to the patient or his or her agent provided a record of the delivery
is maintained containing the following information:
(i)
date of the delivery;
(ii)
unique identification number of the prescription drug
order;
(iii)
patient's name;
(iv)
patient's phone number or the phone number of the person
picking up the prescription; and
(v)
signature of the person picking up the prescription.
(E)
Any prescription delivered to a patient when a pharmacist
is not in the prescription department must meet the requirements for a prescription
delivered to a patient as described in subsection (c)(1)(F) of this section.
(F)
During the times a pharmacist is absent from the prescription
department a pharmacist intern shall be considered a registered pharmacy technician
and may perform only the duties of a registered pharmacy technician.
(G)
In pharmacies with two or more pharmacists on duty, the
pharmacists shall stagger their breaks and meal periods so that the prescription
department is not left without a pharmacist on duty.
(c)
Prescription dispensing and delivery.
(1)
Patient counseling and provision of drug information.
(A)
To optimize drug therapy, a pharmacist shall communicate
to the patient or the patient's agent, information about the prescription
drug or device which in the exercise of the pharmacist's professional judgment
the pharmacist deems significant, such as the following:
(i)
the name and description of the drug or device;
(ii)
dosage form, dosage, route of administration, and duration
of drug therapy;
(iii)
special directions and precautions for preparation, administration,
and use by the patient;
(iv)
common severe side or adverse effects or interactions
and therapeutic contraindications that may be encountered, including their
avoidance, and the action required if they occur;
(v)
techniques for self monitoring of drug therapy;
(vi)
proper storage;
(vii)
refill information; and
(viii)
action to be taken in the event of a missed dose.
(B)
Such communication:
(i)
shall be provided with each new prescription drug order;
(ii)
shall be provided for any prescription drug order dispensed
by the pharmacy on the request of the patient or patient's agent;
(iii)
shall be communicated orally in person unless the patient
or patient's agent is not at the pharmacy or a specific communication barrier
prohibits such oral communication; and
(iv)
shall be reinforced with written information. The following
is applicable concerning this written information.
(I)
Written information designed for the consumer such as the
USP DI patient information leaflets shall be provided.
(II)
When a compounded product is dispensed, information shall
be provided for the major active ingredient(s), if available.
(III)
For new drug entities, if no written information is initially
available, the pharmacist is not required to provide information until such
information is available, provided:
(-a-)
the pharmacist informs the patient or the patient's agent
that the product is a new drug entity and written information is not available;
(-b-)
the pharmacist documents the fact that no written information
was provided; and
(-c-)
if the prescription is refilled after written information
is available, such information is provided to the patient or patient's agent.
(C)
Only a pharmacist may verbally provide drug information
to a patient or patient's agent and answer questions concerning prescription
drugs. Non-pharmacist personnel may not ask questions of a patient or patient's
agent which are intended to screen and/or limit interaction with the pharmacist.
(D)
Nothing in this subparagraph shall be construed as requiring
a pharmacist to provide consultation when a patient or patient's agent refuses
such consultation. The pharmacist shall document such refusal for consultation.
(E)
In addition to the requirements of subparagraphs (A) -
(D) of this paragraph, if a prescription drug order is delivered to the patient
at the pharmacy, the following is applicable.
(i)
So that a patient will have access to information concerning
his or her prescription, a prescription may not be delivered to a patient
unless a pharmacist is in the pharmacy, except as provided in subsection (b)(3)
of this section or clause (ii) of this subparagraph.
(ii)
An agent of the pharmacist may deliver a prescription
drug order to the patient or his or her agent during short periods of time
when a pharmacist is absent from the pharmacy, provided the short periods
of time do not exceed two hours in a 24 hour period, and provided a record
of the delivery is maintained containing the following information:
(I)
date of the delivery;
(II)
unique identification number of the prescription drug
order;
(III)
patient's name;
(IV)
patient's phone number or the phone number of the person
picking up the prescription; and
(V)
signature of the person picking up the prescription.
(iii)
Any prescription delivered to a patient when a pharmacist
is not in the pharmacy must meet the requirements described in subparagraph
(F) of this paragraph.
(iv)
A Class A pharmacy shall make available for use by the
public a current or updated edition of the United States Pharmacopeia Dispensing
Information, Volume II (Advice to the Patient), or another source of such
information designed for the consumer.
(F)
In addition to the requirements of subparagraphs (A) -
(D) of this paragraph, if a prescription drug order is delivered to the patient
or his or her agent at the patient's residence or other designated location,
the following is applicable.
(i)
The information specified in subparagraph (A) of this paragraph
shall be delivered with the dispensed prescription in writing.
(ii)
If prescriptions are routinely delivered outside the area
covered by the pharmacy's local telephone service, the pharmacy shall provide
a toll-free telephone line which is answered during normal business hours
to enable communication between the patient and a pharmacist.
(iii)
The pharmacist shall place on the prescription container
or on a separate sheet delivered with the prescription container in both English
and Spanish the local and if applicable, toll-free telephone number of the
pharmacy and the statement: "Written information about this prescription has
been provided for you. Please read this information before you take the medication.
If you have questions concerning this prescription, a pharmacist is available
during normal business hours to answer these questions at (insert the pharmacy's
local and toll-free telephone numbers)."
(iv)
The pharmacy shall maintain and use adequate storage or
shipment containers and use shipping processes to ensure drug stability and
potency. Such shipping processes shall include the use of appropriate packaging
material and/or devices to ensure that the drug is maintained at an appropriate
temperature range to maintain the integrity of the medication throughout the
delivery process.
(v)
The pharmacy shall use a delivery system which is designed
to assure that the drugs are delivered to the appropriate patient.
(G)
Except as specified in subparagraph (B) of this paragraph,
in the best interest of the public health and to optimize drug therapy, upon
delivery of a refill prescription, a pharmacist shall ensure that the patient
or patient's agent is offered information about the refilled prescription.
Either a pharmacist or other pharmacy personnel shall inform the patient or
patient's agent that a pharmacist is available to discuss the patient's prescription
and provide information.
(H)
A pharmacy shall post a sign no smaller than 8.5 inches
by 11 inches in clear public view at all locations in the pharmacy where a
patient may pick up prescriptions. The sign shall contain the following statement
in a font that is easily readable: "Do you have questions about your prescription?
Ask the pharmacist." Such notification shall be in both English and Spanish.
(I)
The provisions of this paragraph do not apply to patients
in facilities where drugs are administered to patients by a person required
to do so by the laws of the state (i.e., nursing homes).
(2)
Pharmaceutical care services.
(A)
Drug regimen review.
(i)
For the purpose of promoting therapeutic appropriateness,
a pharmacist shall, prior to or at the time of dispensing a prescription drug
order, review the patient's medication record. Such review shall at a minimum
identify clinically significant:
(I)
known allergies;
(II)
rational therapy-contraindications;
(III)
reasonable dose and route of administration;
(IV)
reasonable directions for use;
(V)
duplication of therapy;
(VI)
drug-drug interactions;
(VII)
drug-food interactions;
(VIII)
drug-disease interactions;
(IX)
adverse drug reactions; and
(X)
proper utilization, including overutilization or underutilization.
(ii)
Upon identifying any clinically significant conditions,
situations, or items listed in clause (i) of this subparagraph, the pharmacist
shall take appropriate steps to avoid or resolve the problem including consultation
with the prescribing practitioner. The pharmacist shall document such occurrences.
(iii)
The drug regimen review may be conducted by remotely
accessing the pharmacy's electronic data base from outside the pharmacy by
an individual Texas licensed pharmacist employee of the pharmacy, provided
the pharmacy establishes controls to protect the privacy of the patient and
the security of confidential records.
(B)
Other pharmaceutical care services which may be provided
by pharmacists include, but are not limited to, the following:
(i)
managing drug therapy as delegated by a practitioner as
allowed under the provisions of the Medical Practices;
(ii)
administering immunizations and vaccinations under written
protocol of a physician;
(iii)
managing patient compliance programs;
(iv)
providing preventative health care services; and
(v)
providing case management of patients who are being treated
with high-risk or high-cost drugs, or who are considered "high risk" due to
their age, medical condition, family history, or related concern.
(3)
Generic Substitution.
(A)
General requirements.
(i)
In accordance with Chapter 562 of the Act, a pharmacist
may dispense a generically equivalent drug product if:
(I)
the generic product costs the patient less than the prescribed
drug product;
(II)
the patient does not refuse the substitution; and
(III)
the practitioner does not certify on the prescription
form that a specific prescribed brand is medically necessary as specified
in a dispensing directive described in subparagraph (C) of this paragraph.
(ii)
If the practitioner has prohibited substitution through
a dispensing directive in compliance with subparagraph (C) of this paragraph,
a pharmacist shall not substitute a generically equivalent drug product unless
the pharmacist obtains verbal or written authorization from the practitioner
and notes such authorization on the original prescription drug order.
(B)
Prescription format for written prescription drug orders.
(i)
A written prescription drug order issued in Texas may:
(I)
be on a form containing a single signature line for the
practitioner; and
(II)
contain the following reminder statement on the face of
the prescription: "A generically equivalent drug product may be dispensed
unless the practitioner hand writes the words 'Brand Necessary' or 'Brand
Medically Necessary' on the face of the prescription."
(ii)
A pharmacist may dispense a prescription that is not issued
on the form specified in clause (i) of this subparagraph, however, the pharmacist
may dispense a generically equivalent drug product unless the practitioner
has prohibited substitution through a dispensing directive in compliance with
subparagraph (C)(i) of this paragraph.
(iii)
The prescription format specified in clause (i) of this
subparagraph does not apply to the following types of prescription drug orders:
(I)
prescription drug orders issued by a practitioner in a
state other than Texas;
(II)
prescriptions for dangerous drugs issued by a practitioner
in the United Mexican States or the Dominion of Canada; or
(III)
prescription drug orders issued by practitioners practicing
in a federal facility provided they are acting in the scope of their employment.
(iv)
In the event of multiple prescription orders appearing
on one prescription form, the practitioner shall clearly identify to which
prescription(s) the dispensing directive(s) apply. If the practitioner does
not clearly indicate to which prescription(s) the dispensing directive(s)
apply, the pharmacist may substitute on all prescriptions on the form.
(C)
Dispensing directive.
(i)
Written prescriptions.
(I)
A practitioner may prohibit the substitution of a generically
equivalent drug product for a brand name drug product by writing across the
face of the written prescription, in the practitioner's own handwriting, the
phrase "brand necessary" or "brand medically necessary."
(II)
The dispensing directive shall:
(-a-)
be in a format that protects confidentiality as required
by the Health Insurance Portability and Accountability Act of 1996 (29 U.S.C.
Section 1181 et seq.) and its subsequent amendments; and
(-b-)
comply with federal and state law, including rules, with
regard to formatting and security requirements.
(III)
The dispensing directive specified in this paragraph
may not be preprinted, rubber stamped, or otherwise reproduced on the prescription
form.
(IV)
After, June 1, 2002, a practitioner may prohibit substitution
on a written prescription only by following the dispensing directive specified
in this paragraph. Two-line prescription forms, check boxes, or other notations
on an original prescription drug order which indicate "substitution instructions"
are not valid methods to prohibit substitution, and a pharmacist may substitute
on these types of written prescriptions.
(V)
A written prescription drug order issued prior to June
1, 2002, but presented for dispensing on or after June 1, 2002, shall follow
the substitution instructions on the prescription.
(ii)
Verbal Prescriptions.
(I)
If a prescription drug order is transmitted to a pharmacist
orally, the practitioner or practitioner's agent shall prohibit substitution
by specifying "brand necessary" or "brand medically necessary." The pharmacists
shall note any substitution instructions by the practitioner or practitioner's
agent, on the file copy of the prescription drug order. Such file copy may
follow the one-line format indicated in subparagraph (B)(i) of this paragraph,
or any other format that clearly indicates the substitution instructions.
(II)
If the practitioner's or practitioner's agent does not
clearly indicate that the brand name is medically necessary, the pharmacist
may substitute a generically equivalent drug product.
(III)
To prohibit substitution on a verbal prescription reimbursed
through the medical assistance program specified in 42 C.F.R., §447.331:
(-a-)
the practitioner or the practitioner's agent shall verbally
indicate that the brand is medically necessary; and
(-b-)
the practitioner shall mail or fax a written prescription
to the pharmacy which complies with the dispensing directive for written prescriptions
specified in clause (i) of this subparagraph within 30 days.
(iii)
Electronic prescription drug orders.
(I)
To prohibit substitution, the practitioner or practitioner's
agent shall note "brand necessary" or "brand medically necessary" on the electronic
prescription drug order.
(II)
If the practitioner or practitioner's agent does not clearly
indicate on the electronic prescription drug order that the brand is medically
necessary, the pharmacist may substitute a generically equivalent drug product.
(III)
To prohibit substitution on an electronic prescription
drug order reimbursed through the medical assistance program specified in
42 C.F.R., §447.331, the practitioner shall fax a copy of the original
prescription drug order which complies with the requirements of a written
prescription drug order specified in clause (i) of this subparagraph within
30 days.
(iv)
Prescriptions issued by out-of-state, Mexican, Canadian,
or federal facility practitioners.
(I)
The dispensing directive specified in this subsection does
not apply to the following types of prescription drug orders:
(-a-)
prescription drug orders issued by a practitioner in
a state other than Texas;
(-b-)
prescriptions for dangerous drugs issued by a practitioner
in the United Mexican States or the Dominion of Canada; or
(-c-)
prescription drug orders issued by practitioners practicing
in a federal facility provided they are acting in the scope of their employment.
(II)
A pharmacist may not substitute on prescription drug orders
identified in subclause (I) of this clause unless the practitioner has authorized
substitution on the prescription drug order. If the practitioner has not authorized
substitution on the written prescription drug order, a pharmacist shall not
substitute a generically equivalent drug product unless:
(-a-)
the pharmacist obtains verbal or written authorization
from the practitioner (such authorization shall be noted on the original prescription
drug order); or
(-b-)
the pharmacist obtains written documentation regarding
substitution requirements from the State Board of Pharmacy in the state, other
than Texas, in which the prescription drug order was issued. The following
is applicable concerning this documentation.
(-1-)
The documentation shall state that a pharmacist may substitute
on a prescription drug order issued in such other state unless the practitioner
prohibits substitution on the original prescription drug order.
(-2-)
The pharmacist shall note on the original prescription
drug order the fact that documentation from such other state board of pharmacy
is on file.
(-3-)
Such documentation shall be updated yearly.
(D)
Refills.
(i)
Original substitution instructions. All refills, including
prescriptions issued prior to June 1, 2001, shall follow the original substitution
instructions or dispensing directive, unless otherwise indicated by the practitioner
or practitioner's agent.
(ii)
Narrow therapeutic index drugs.
(I)
The board, in consultation with the Texas State Board of
Medical Examiners, has determined that no drugs shall be included on a list
of narrow therapeutic index drugs as defined in §562.013, Occupations
Code.
(-a-)
The board has specified in §309.7 of this title
(relating to dispensing responsibilities) that for drugs listed in the publication,
pharmacists shall use as a basis for determining generic equivalency, Approved
Drug Products with Therapeutic Equivalence Evaluations and current supplements
published by the Federal Food and Drug Administration, within the limitations
stipulated in that publication. Pharmacists may only substitute products that
are rated therapeutically equivalent in the Approved Drug Products with Therapeutic
Equivalence Evaluations and current supplements.
(-b-)
Practitioners may prohibit substitution through a dispensing
directive in compliance with subparagraph (C) of this paragraph.
(II)
The board shall reconsider the contents of the list if
the Federal Food and Drug Administration determines a new equivalence classification
which indicates that certain drug products are equivalent but special notification
to the patient and practitioner is required when substituting these products.
(4)
Substitution of dosage form.
(A)
As specified in §562.002 of the Act, a pharmacist
may dispense a dosage form of a drug product different from that prescribed,
such as a tablet instead of a capsule or liquid instead of tablets, provided:
(i)
the patient consents to the dosage form substitution;
(ii)
the pharmacist notifies the practitioner of the dosage
form substitution; and
(iii)
the dosage form so dispensed:
(I)
contains the identical amount of the active ingredients
as the dosage prescribed for the patient;
(II)
is not an enteric-coated or time release product;
(III)
does not alter desired clinical outcomes;
(B)
Substitution of dosage form may not include the substitution
of a product that has been compounded by the pharmacist unless the pharmacist
contacts the practitioner prior to dispensing and obtains permission to dispense
the compounded product.
(5)
Therapeutic Drug Interchange. A switch to a drug providing
a similar therapeutic response to the one prescribed shall not be made without
prior approval of the prescribing practitioner. This paragraph does not apply
to generic substitution. For generic substitution, see the requirements of
paragraph (3) of this subsection.
(A)
The patient shall be notified of the therapeutic drug interchange
prior to, or upon delivery, of the dispensed prescription to the patient.
Such notification shall include:
(i)
a description of the change;
(ii)
the reason for the change;
(iii)
whom to notify with questions concerning the change;
and
(iv)
instructions for return of the drug if not wanted by the
patient.
(B)
The pharmacy shall maintain documentation of patient notification
of therapeutic drug interchange which shall include:
(i)
the date of the notification;
(ii)
the method of notification;
(iii)
a description of the change; and
(iv)
the reason for the change.
(6)
Prescription containers.
(A)
A drug dispensed pursuant to a prescription drug order
shall be dispensed in a child-resistant container unless:
(i)
the patient or the practitioner requests the prescription
not be dispensed in a child-resistant container; or
(ii)
the product is exempted from requirements of the Poison
Prevention Packaging Act of 1970.
(B)
A drug dispensed pursuant to a prescription drug order
shall be dispensed in an appropriate container as specified on the manufacturer's
container.
(C)
Prescription containers or closures shall not be re-used.
(7)
Labeling.
(A)
At the time of delivery of the drug, the dispensing container
shall bear a label with at least the following information:
(i)
name, address and phone number of the pharmacy;
(ii)
unique identification number of the prescription;
(iii)
date the prescription is dispensed;
(iv)
initials or an identification code of the dispensing pharmacist;
(v)
name of the prescribing practitioner;
(vi)
name of the patient or if such drug was prescribed for
an animal, the species of the animal and the name of the owner;
(vii)
instructions for use;
(viii)
quantity dispensed;
(ix)
appropriate ancillary instructions such as storage instructions
or cautionary statements such as warnings of potential harmful effects of
combining the drug product with any product containing alcohol;
(x)
if the prescription is for a Schedules II - IV controlled
substance, the statement "Caution: Federal law prohibits the transfer of this
drug to any person other than the patient for whom it was prescribed";
(xi)
if the pharmacist has selected a generically equivalent
drug pursuant to the provisions of the Act, Chapters 562 and 563, the statement
"Substituted for Brand Prescribed" or "Substituted for 'Brand Name'" where
"Brand Name" is the actual name of the brand name product prescribed;
(xii)
the name of the advanced practice nurse or physician
assistant, if the prescription is carried out or signed by an advanced practice
nurse or physician assistant in compliance with Subtitle B, Chapter 157, Occupations
Code; and
(xiii)
the name and strength of the actual drug product dispensed,
unless otherwise directed by the prescribing practitioner.
(I)
The name shall be either:
(-a-)
the brand name; or
(-b-)
if no brand name, then the generic name and name of the
manufacturer or distributor of such generic drug. (The name of the manufacturer
or distributor may be reduced to an abbreviation or initials, provided the
abbreviation or initials are sufficient to identify the manufacturer or distributor.
For combination drug products or non-sterile compounded drug products having
no brand name, the principal active ingredients shall be indicated on the
label.)
(II)
Except as provided in clause (xi) of this subparagraph,
the brand name of the prescribed drug shall not appear on the prescription
container label unless it is the drug product actually dispensed.
(B)
The dispensing container is not required to bear the label
specified in subparagraph (A) of this paragraph if:
(i)
the drug is prescribed for administration to an ultimate
user who is institutionalized in a licensed health care institution (e.g.,
nursing home, hospice, hospital);
(ii)
no more than a 34-day supply or 100 dosage units, whichever
is less, is dispensed at one time;
(iii)
the drug is not in the possession of the ultimate user
prior to administration;
(iv)
the pharmacist-in-charge has determined that the institution:
(I)
maintains medication administration records which include
adequate directions for use for the drug(s) prescribed;
(II)
maintains records of ordering, receipt, and administration
of the drug(s); and
(III)
provides for appropriate safeguards for the control and
storage of the drug(s); and
(v)
the dispensing container bears a label that adequately:
(I)
identifies the:
(-a-)
pharmacy by name and address;
(-b-)
unique identification number of the prescription;
(-c-)
name and strength of the drug dispensed;
(-d-)
name of the patient;
(-e-)
name of the prescribing practitioner and, if applicable,
the name of the advanced practice nurse or physician assistant who signed
the prescription drug order; and
(II)
sets forth the directions for use and cautionary statements,
if any, contained on the prescription drug order or required by law.
(d)
Equipment and supplies. Class A pharmacies dispensing prescription
drug orders shall have the following equipment and supplies:
(1)
typewriter or comparable equipment;
(2)
refrigerator;
(3)
adequate supply of child-resistant, light-resistant, tight,
and if applicable, glass containers;
(4)
adequate supply of prescription, poison, and other applicable
labels;
(5)
appropriate equipment necessary for the proper preparation
of prescription drug orders; and
(6)
metric-apothecary weight and measure conversion charts.
(e)
Library. A reference library shall be maintained which
includes the following in hard-copy or electronic format:
(1)
current copies of the following:
(A)
Texas Pharmacy Act and rules;
(B)
Texas Dangerous Drug Act and rules;
(C)
Texas Controlled Substances Act and rules; and
(D)
Federal Controlled Substances Act and rules (or official
publication describing the requirements of the Federal Controlled Substances
Act and rules);
(2)
at least one current or updated reference from each of
the following categories:
(A)
patient information:
(i)
United States Pharmacopeia Dispensing Information, Volume
II (Advice to the Patient); or
(ii)
a reference text or information leaflets which provide
patient information;
(B)
drug interactions: a reference text on drug interactions,
such as Drug Interaction Facts. A separate reference is not required if other
references maintained by the pharmacy contain drug interaction information
including information needed to determine severity or significance of the
interaction and appropriate recommendations or actions to be taken;
(C)
a general information reference text, such as:
(i)
Facts and Comparisons with current supplements;
(ii)
United States Pharmacopeia Dispensing Information Volume
I (Drug Information for the Healthcare Provider);
(iii)
Clinical Pharmacology;
(iv)
American Hospital Formulary Service with current supplements;
or
(v)
Remington's Pharmaceutical Sciences; and
(3)
basic antidote information and the telephone number of
the nearest Regional Poison Control Center.
(f)
Drugs.
(1)
Procurement and storage.
(A)
The pharmacist-in-charge shall have the responsibility
for the procurement and storage of drugs, but may receive input from other
appropriate staff relative to such responsibility.
(B)
Prescription drugs and devices and nonprescription Schedule
V controlled substances shall be stored within the prescription department
or a locked storage area.
(C)
All drugs shall be stored at the proper temperature, as
defined by the following terms:
(i)
controlled room temperature--temperature maintained thermostatically
between 15 degrees and 30 degrees Celsius (59 degrees and 86 degrees Fahrenheit);
(ii)
cool--temperature between 8 degrees and 15 degrees Celsius
(46 degrees and 59 degrees Fahrenheit) which may, alternatively, be stored
in a refrigerator unless otherwise specified on the labeling;
(iii)
refrigerate--temperature maintained thermostatically
between 2 degrees and 8 degrees Celsius (36 degrees and 46 degrees Fahrenheit);
and
(iv)
freeze--temperature maintained thermostatically between
-20 degrees and -10 degrees Celsius (-4 degrees and 14 degrees Fahrenheit).
(2)
Out-of-date drugs or devices.
(A)
Any drug or device bearing an expiration date shall not
be dispensed beyond the expiration date of the drug or device.
(B)
Outdated drugs or devices shall be removed from dispensing
stock and shall be quarantined together until such drugs or devices are disposed
of properly.
(3)
Nonprescription Schedule V controlled substances.
(A)
Schedule V controlled substances containing codeine, dihydrocodeine,
or any of the salts of codeine or dihydrocodeine may not be distributed without
a prescription drug order from a practitioner.
(B)
A pharmacist may distribute nonprescription Schedule V
controlled substances which contain no more than 15 milligrams of opium per
29.5729 ml or per 28.35 Gm provided:
(i)
such distribution is made only by a pharmacist; a nonpharmacist
employee may not distribute a nonprescription Schedule V controlled substance
even if under the supervision of a pharmacist; however, after the pharmacist
has fulfilled professional and legal responsibilities, the actual cash, credit
transaction, or delivery may be completed by a nonpharmacist:
(ii)
not more than 240 ml (eight fluid ounces), or not more
than 48 solid dosage units of any substance containing opium, may be distributed
to the same purchaser in any given 48-hour period without a prescription drug
order;
(iii)
the purchaser is at least 18 years of age; and
(iv)
the pharmacist requires every purchaser not known to the
pharmacist to furnish suitable identification (including proof of age where
appropriate).
(C)
A record of such distribution shall be maintained by the
pharmacy in a bound record book. The record shall contain the following information:
(i)
true name of the purchaser;
(ii)
current address of the purchaser;
(iii)
name and quantity of controlled substance purchased;
(iv)
date of each purchase; and
(v)
signature or written initials of the distributing pharmacist.
(4)
Class A Pharmacies may not sell, purchase, trade or possess
prescription drug samples, unless the pharmacy meets all of the following
conditions:
(A)
the pharmacy is owned by a charitable organization described
in the Internal Revenue Code of 1986, or by a city, state or county government;
(B)
the pharmacy is a part of a health care entity which provides
health care primarily to indigent or low income patients at no or reduced
cost;
(C)
the samples are for dispensing or provision at no charge
to patients of such health care entity; and
(D)
the samples are possessed in compliance with the federal
Prescription Drug Marketing Act of 1986.
(g)
Prepackaging of drugs.
(1)
Drugs may be prepackaged in quantities suitable for internal
distribution only by a pharmacist or by supportive personnel under the direction
and direct supervision of a pharmacist.
(2)
The label of a prepackaged unit shall indicate:
(A)
brand name and strength of the drug; or if no brand name,
then the generic name, strength, and name of the manufacturer or distributor;
(B)
facility's lot number;
(C)
expiration date; and
(D)
quantity of the drug, if the quantity is greater than one.
(3)
Records of prepackaging shall be maintained to show:
(A)
name of the drug, strength, and dosage form;
(B)
facility's lot number;
(C)
manufacturer or distributor;
(D)
manufacturer's lot number;
(E)
expiration date;
(F)
quantity per prepackaged unit;
(G)
number of prepackaged units;
(H)
date packaged;
(I)
name, initials, or electronic signature of the prepacker;
and
(J)
signature, or electronic signature of the responsible pharmacist.
(4)
Stock packages, repackaged units, and control records shall
be quarantined together until checked/released by the pharmacist.
(h)
Customized patient medication packages.
(1)
Purpose. In lieu of dispensing two or more prescribed drug
products in separate containers, a pharmacist may, with the consent of the
patient, the patient's caregiver, or the prescriber, provide a customized
patient medication package (patient med-pak).
(2)
Definition. A patient med-pak is a package prepared by
a pharmacist for a specific patient comprising a series of containers and
containing two or more prescribed solid oral dosage forms. The patient med-pak
is so designed or each container is so labeled as to indicate the day and
time, or period of time, that the contents within each container are to be
taken.
(3)
Label.
(A)
The patient med-pak shall bear a label stating:
(i)
the name of the patient;
(ii)
the unique identification number for the patient med-pak
itself and a separate unique identification number for each of the prescription
drug orders for each of the drug products contained therein;
(iii)
the name, strength, physical description or identification,
and total quantity of each drug product contained therein;
(iv)
the directions for use and cautionary statements, if any,
contained in the prescription drug order for each drug product contained therein;
(v)
if applicable, a warning of the potential harmful effect
of combining any form of alcoholic beverage with any drug product contained
therein;
(vi)
any storage instructions or cautionary statements required
by the official compendia;
(vii)
the name of the prescriber of each drug product;
(viii)
the date of preparation of the patient med-pak and the
beyond-use date assigned to the patient med-pak (which such beyond-use date
shall not be later than 60 days from the date of preparation);
(ix)
the name, address, and telephone number of the pharmacy;
(x)
the initials or an identification code of the dispensing
pharmacist; and
(xi)
any other information, statements, or warnings required
for any of the drug products contained therein.
(B)
If the patient med-pak allows for the removal or separation
of the intact containers therefrom, each individual container shall bear a
label identifying each of the drug product contained therein.
(C)
The dispensing container is not required to bear the label
specified in subparagraph (A) of this paragraph if:
(i)
the drug is prescribed for administration to an ultimate
user who is institutionalized in a licensed health care institution (e.g.,
nursing home, hospice, hospital);
(ii)
no more than a 34-day supply or 100 dosage units, whichever
is less, is dispensed at one time;
(iii)
the drug is not in the possession of the ultimate user
prior to administration;
(iv)
the pharmacist-in-charge has determined that the institution:
(I)
maintains medication administration records which include
adequate directions for use for the drug(s) prescribed;
(II)
maintains records of ordering, receipt, and administration
of the drug(s); and
(III)
provides for appropriate safeguards for the control and
storage of the drug(s); and
(v)
the system employed by the pharmacy in dispensing the prescription
drug order adequately:
(I)
identifies the:
(-a-)
pharmacy name and address;
(-b-)
unique identification number of the prescription;
(-c-)
name and strength each drug product dispensed;
(-d-)
name of the patient;
(-e-)
name of the prescribing practitioner of each drug product;
and
(II)
for each drug product sets forth the directions for use
and cautionary statements, if any contained on the prescription drug order
or required by law.
(4)
Labeling. The patient med-pak shall be accompanied by a
patient package insert, in the event that any drug contained therein is required
to be dispensed with such insert as accompanying labeling. Alternatively,
such required information may be incorporated into a single, overall educational
insert provided by the pharmacist for the total patient med-pak.
(5)
Packaging. In the absence of more stringent packaging requirements
for any of the drug products contained therein, each container of the patient
med-pak shall comply with official packaging standards. Each container shall
be either not reclosable or so designed as to show evidence of having been
opened.
(6)
Guidelines. It is the responsibility of the dispensing
pharmacist when preparing a patient med-pak, to take into account any applicable
compendial requirements or guidelines and the physical and chemical compatibility
of the dosage forms placed within each container, as well as any therapeutic
incompatibilities that may attend the simultaneous administration of the drugs.
(7)
Recordkeeping. In addition to any individual prescription
filing requirements, a record of each patient med-pak shall be made and filed.
Each record shall contain, as a minimum:
(A)
the name and address of the patient;
(B)
the unique identification number for the patient med-pak
itself and a separate unique identification number for each of the prescription
drug orders for each of the drug products contained therein;
(C)
the name of the manufacturer or distributor and lot number
for each drug product contained therein;
(D)
information identifying or describing the design, characteristics,
or specifications of the patient med-pak sufficient to allow subsequent preparation
of an identical patient med-pak for the patient;
(E)
the date of preparation of the patient med-pak and the
beyond-use date that was assigned;
(F)
any special labeling instructions; and
(G)
the initials or an identification code of the dispensing
pharmacist.
(i)
Automated devices and systems.
(1)
Automated compounding or counting devices. If a pharmacy
uses automated compounding or counting devices:
(A)
the pharmacy shall have a method to calibrate and verify
the accuracy of the automated compounding or counting device and document
the calibration and verification on a routine basis;
(B)
the devices may be loaded with bulk or unlabeled drugs
only by a pharmacist or by pharmacy technicians under the direction and direct
supervision of a pharmacist;
(C)
the label of an automated compounding or counting device
container shall indicate the brand name and strength of the drug; or if no
brand name, then the generic name, strength, and name of the manufacturer
or distributor;
(D)
records of loading bulk or unlabeled drugs into an automated
compounding or counting device shall be maintained to show:
(i)
name of the drug, strength, and dosage form;
(ii)
manufacturer or distributor;
(iii)
manufacturer's lot number;
(iv)
expiration date;
(v)
date of loading;
(vi)
name, initials, or electronic signature of the person
loading the automated compounding or counting device; and
(vii)
signature or electronic signature of the responsible
pharmacist; and
(E)
the automated compounding or counting device shall not
be used until a pharmacist verifies that the system is properly loaded and
affixes his or her signature to the record specified in subparagraph (D) of
this paragraph.
(2)
Automated pharmacy dispensing systems. This paragraph becomes
effective September 1, 2000.
(A)
Authority to use automated pharmacy dispensing systems.
A pharmacy may use an automated pharmacy dispensing system to fill prescription
drug orders provided that:
(i)
the pharmacist-in-charge is responsible for the supervision
of the operation of the system;
(ii)
the automated pharmacy dispensing system has been tested
by the pharmacy and found to dispense accurately. The pharmacy shall make
the results of such testing available to the Board upon request; and
(iii)
the pharmacy will make the automated pharmacy dispensing
system available for inspection by the board for the purpose of validating
the accuracy of the system.
(B)
Quality assurance program. A pharmacy which uses an automated
pharmacy dispensing system to fill prescription drug orders shall operate
according to a written program for quality assurance of the automated pharmacy
dispensing system which:
(i)
requires continuous monitoring of the automated pharmacy
dispensing system; and
(ii)
establishes mechanisms and procedures to test the accuracy
of the automated pharmacy dispensing system at least every six months and
whenever any upgrade or change is made to the system and documents each such
activity.
(C)
Policies and procedures of operation.
(i)
When an automated pharmacy dispensing system is used to
fill prescription drug orders, it shall be operated according to written policies
and procedures of operation. The policies and procedures of operation shall
establish requirements for operation of the automated pharmacy dispensing
system and shall describe policies and procedures that:
(I)
include a description of the policies and procedures of
operation;
(II)
provide for a pharmacist's review, approval, and accountability
for the transmission of each original or new prescription drug order to the
automated pharmacy dispensing system before the transmission is made;
(III)
provide for access to the automated pharmacy dispensing
system for stocking and retrieval of medications which is limited to licensed
healthcare professionals or pharmacy technicians acting under the supervision
of a pharmacist;
(IV)
require prior to use, that a pharmacist checks, verifies,
and documents that the automated pharmacy dispensing system has been accurately
filled each time the system is stocked;
(V)
provide for an accountability record to be maintained which
documents all transactions relative to stocking and removing medications from
the automated pharmacy dispensing system;
(VI)
require a prospective drug regimen review is conducted
as specified in subsection (c)(2) of this section; and
(VII)
establish and make provisions for documentation of a
preventative maintenance program for the automated pharmacy dispensing system.
(ii)
A pharmacy which uses an automated pharmacy dispensing
system to fill prescription drug orders shall, at least annually, review its
written policies and procedures, revise them if necessary, and document the
review.
(D)
Recovery Plan. A pharmacy which uses an automated pharmacy
dispensing system to fill prescription drug orders shall maintain a written
plan for recovery from a disaster or any other situation which interrupts
the ability of the automated pharmacy dispensing system to provide services
necessary for the operation of the pharmacy. The written plan for recovery
shall include:
(i)
planning and preparation for maintaining pharmacy services
when an automated pharmacy dispensing system is experiencing downtime;
(ii)
procedures for response when an automated pharmacy dispensing
system is experiencing downtime;
(iii)
procedures for the maintenance and testing of the written
plan for recovery; and
(iv)
procedures for notification of the Board, each patient
of the pharmacy, and other appropriate agencies whenever an automated pharmacy
dispensing system experiences downtime for more than two days of operation
or a period of time which significantly limits the pharmacy's ability to provide
pharmacy services.
(3)
Final check of prescriptions dispensed using an automated
pharmacy dispensing system. For the purpose of §291.32(b)(2) of this
title, a pharmacist must perform the final check of all prescriptions prior
to delivery to the patient to ensure that the prescription is dispensed accurately
as prescribed.
(A)
This final check shall be considered accomplished if:
(i)
a check of the final product is conducted by a pharmacist
after the automated system has completed the prescription and prior to delivery
to the patient; or
(ii)
the following checks are conducted by a pharmacist:
(I)
if the automated pharmacy dispensing system contains bulk
stock drugs, a pharmacist verifies that those drugs have been accurately stocked
as specified in paragraph (2)(C)(i)(IV) of this subsection; and
(II)
a pharmacist checks the accuracy of the data entry of
each original or new prescription drug order entered into the automated pharmacy
dispensing system.
(B)
If the final check is accomplished as specified in subparagraph
(A)(ii) of this paragraph, the following additional requirements must be met.
(i)
The dispensing process must be fully automated from the
time the pharmacist releases the prescription to the automated system until
a completed, labeled prescription ready for delivery to the patient is produced.
(ii)
The pharmacy has conducted initial testing and has a continuous
quality assurance program which documents that the automated pharmacy dispensing
system dispenses accurately as specified in paragraph (2)(A) and (B) of this
subsection.
(iii)
The automated pharmacy dispensing system documents and
maintains:
(I)
the name(s), initials, or identification code(s) of each
pharmacist responsible for the checks outlined in subparagraph (A)(ii) of
this paragraph; and
(II)
the name(s), initials, or identification code(s) and specific
activity(ies) of each pharmacist or pharmacy technician who performs any other
portion of the dispensing process.
(iv)
The pharmacy establishes mechanisms and procedures to
test the accuracy of the automated pharmacy dispensing system at least every
month rather than every six months as specified in paragraph (2)(B) of this
subsection.
(4)
Automated checking device.
(A)
For the purpose of this subsection, an automated checking
device is a fully automated device which confirms, after dispensing but prior
to delivery to the patient, that the correct drug and strength has been labeled
with the correct label for the correct patient.
(B)
For the purpose of §291.32(b)(2) of this title, the
final check of a dispensed prescription shall be considered accomplished using
an automated checking device provided:
(i)
a check of the final product is conducted by a pharmacist
prior to delivery to the patient or the following checks are performed by
a pharmacist:
(I)
the prepackaged drug used to fill the order is checked
by a pharmacist who verifies that the drug is labeled and packaged accurately;
and
(II)
a pharmacist checks the accuracy of each original or new
prescription drug order.
(ii)
the prescription is dispensed, labeled, and made ready
for delivery to the patient in compliance with Class A (Community) Pharmacy
rules; and
(iii)
prior to delivery to the patient:
(I)
the automated checking device confirms that the correct
drug and strength has been labeled with the correct label for the correct
patient; and
(II)
a pharmacist performs all other duties required to ensure
that the prescription has been dispensed safely and accurately as prescribed.
(C)
If the final check is accomplished as specified in subparagraph
(B) of this paragraph, the following additional requirements must be met.
(i)
The pharmacy has conducted initial testing of the automated
checking device and has a continuous quality assurance program which documents
that the automated checking device accurately confirms that the correct drug
and strength has been labeled with the correct label for the correct patient.
(ii)
The pharmacy documents and maintains:
(I)
the name(s), initials, or identification code(s) of each
pharmacist responsible for the checks outlined in subparagraph (B)(i) of this
paragraph; and
(II)
the name(s) initials, or identification code(s) and specific
activity(ies) of each pharmacist or pharmacy technician who perform any other
portion of the dispensing process.
(iii)
The pharmacy establishes mechanisms and procedures to
test the accuracy of the automated checking device at least monthly.
This agency hereby certifies that the adoption
has been reviewed by legal counsel and found to be a valid exercise of the
agency's legal authority.
Filed with the Office of
the Secretary of State on May 22, 2006.
TRD-200602852
Gay Dodson, R. Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: June 11, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
22 TAC §§297.1 - 297.9
The Texas State Board of Pharmacy adopts amendments to Chapter
297, §297.1 - 297.9, concerning the registration of pharmacy technician
trainees. The amendments to §297.8 are adopted with changes to proposed
text as published in the March 31, 2006, issue of the
Texas Register
(31 TexReg 2817). The amendments to §§297.1
- 297.7 and §297.9 are adopted without changes to the proposed text and
will not be republished.
The amendments require individuals to register with the Board before beginning
work in a pharmacy as a pharmacy technician trainee and outline the procedures
and requirements for individuals to register as pharmacy technician trainees,
implementing provisions of SB 410. The amendments also require pharmacy technician
applicants and pharmacy technician trainee applicants to submit fingerprint
information in order for the Board to access criminal history information.
Comments were received from the Texas Pharmacy Association (TPA), the Texas
Society of Health-System Pharmacists (TSHP), and the Texas Federation of Drug
Stores (TFDS).
TPA commented that the Texas Pharmacy Act (Act) does not give the Board
the authority to require pharmacy technicians and pharmacy technician trainees
to notify the board of a change of name, address, and place of employment.
The Board disagrees with this comment because §554.051(a) of the Act
specifies that "the board shall adopt rules consistent with the Act for the
administration and enforcement of this Act." Chapter 568 of the Act requires
pharmacy technicians and pharmacy technician trainees to be registered with
the Board and allows the Board to discipline these registrants for violations
of the Act. To administer this requirement, the Board needs to know where
the registrant is located so that violations can be investigated and the registrant
can be notified of possible disciplinary action as required in the Administrative
Procedures Act.
TPA, TSHP, and TFDS oppose the requirements relating to the fingerprinting
requirements for pharmacy technicians and pharmacy technician trainees. TSHP
commented that the requirement is unnecessarily costly for individuals with
generally the lowest pay within the pharmacy industry and the highest turnover
rate. TFDS commented that the requirement is overly burdensome and inappropriate
for entry level pharmacy employees. TSHP and TFDS recommended that the pharmacy
students/interns would be a more appropriate group for the fingerprinting
requirements. The Board disagrees with the comments and believes that in order
to best protect the public, fingerprint background checks are necessary for
pharmacy technicians and pharmacy technician trainees in order to identify
all individuals with criminal records that would provide grounds for denial
of the registrations. The Board believes that the earlier it identifies these
individuals the better the protection of the public and the less likelihood
of further problems with individuals with serious criminal histories. The
Board will propose the fingerprint background checks for all licensees on
a "phase-in" basis. The Board does not believe the cost of the fingerprinting
is overly burdensome in that the cost is less than $50 which far outweighs
the need for full disclosure of criminal history in all states as well as
federal criminal histories. In addition, the fingerprint check provides more
accurate information. The Board believes an increase in accountability will
decrease turnover rates and unnecessary costs.
TSHP suggested including a "designated staff development educator" as an
individual who would be able to sign off on a pharmacy technician's or pharmacy
technician trainee's training. The Board disagrees with this comment and believes
that the pharmacist-in-charge must be held accountable for the training of
the pharmacy technicians and pharmacy technician trainees.
TSHP and TFDS pointed out duplicate language in §297.8(b)(2) and (3).
The Board agrees with this comment and the duplication was deleted from the
rule.
The amendments are adopted under §§551.002, 554.051,
and 568.007 of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas
Occupations Code). The Board interprets §551.002 as authorizing the agency
to protect the public through the effective control and regulation of the
practice of pharmacy. The Board interprets §554.051(a) as authorizing
the agency to adopt rules for the proper administration and enforcement of
the Act. The Board interprets §568.007 as authorizing the agency to register
pharmacy technician trainees.
The statutes affected by the amendments: Texas Pharmacy Act, Chapters 551
- 566 and 568 - 569, Texas Occupations Code.
§297.8.Continuing Education Requirements.
(a)
Pharmacy Technician Trainees. Pharmacy technician trainees
are not required to complete continuing education.
(b)
Pharmacy Technicians.
(1)
All pharmacy technicians shall be exempt from the continuing
education requirements during their initial registration period.
(2)
All pharmacy technicians must complete 20 contact hours
of approved continuing education per renewal period in pharmacy related subjects
in order to renew their registration as a pharmacy technician. No more than
10 of the 20 hours may be earned at the pharmacy technician's workplace through
in-service education and training under the direct supervision of the pharmacist(s).
(3)
One hour specified in subsection (a) of this section shall
be related to pharmacy law.
(4)
Pharmacy technicians are required to maintain records of
completion of continuing education for three years from the date of reporting
the hours on a renewal application. The records must contain at least the
following information:
(A)
name of participant;
(B)
title and date of program;
(C)
program sponsor or provider (the organization);
(D)
number of hours awarded; and
(E)
dated signature of sponsor representative.
(5)
The board shall audit the records of pharmacy technicians
for verification of reported continuing education credit. The following is
applicable for such audits.
(A)
Upon written request, a pharmacy technician shall provide
to the board copies of the record required to be maintained in paragraph (4)
of this subsection or certificates of completion for all continuing education
contact hours reported during a specified registration period. Failure to
provide all requested records by the specified deadline constitutes prima
facie evidence of a violation of this rule.
(B)
Credit for continuing education contact hours shall only
be allowed for programs for which the pharmacy technician submits copies of
records reflecting that the hours were completed during the specified registration
period(s). Any other reported hours shall be disallowed.
(C)
A pharmacy technician shall not submit false or fraudulent
records to the board.
(6)
Pharmacy technicians who are certified by the Pharmacy
Technician Certification Board and maintain this certification shall be considered
as having met the continuing education requirements of this section and shall
not be subject to audit by the board.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on May 22, 2006.
TRD-200602855
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: June 11, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
22 TAC §305.1, §305.2
The Texas State Board of Pharmacy adopts amendments to §305.1
and §305.2, concerning Pharmacy Education Requirements and Pharmacy Technician
Training Programs. The amendments to §305.1 are adopted without changes
to proposed text as published in the March 31, 2006, issue of the
Texas Register
(31 TexReg 2822). The amendments to §305.2 are
adopted with changes to proposed text as published. Section 305.2(e) was inadvertently
omitted from the proposal. The section is adopted with changes to include
the text of subsection (e).
The amendments update the rules to be consistent with other sections in
the rules.
No comments were received regarding the amendments.
The amendments are adopted under §551.002 and §554.051
of the Texas Pharmacy Act (Chapters 551 - 566 and 568 - 569, Texas Occupations
Code). The Board interprets §551.002 as authorizing the agency to protect
the public through the effective control and regulation of the practice of
pharmacy. The Board interprets §554.051(a) as authorizing the agency
to adopt rules for the proper administration and enforcement of the Act.
The statutes affected by the amendments: Texas Pharmacy Act, Chapters 551
- 566 and 568 - 569, Texas Occupations Code.
§305.2.Pharmacy Technician Training Programs.
(a)
Purpose. The purpose of this section is to set standards
for Board approval of pharmacy technician training programs to ensure that
graduates of the programs have the basic knowledge and experience in general
pharmacy to practice in most pharmacy settings. Pharmacy technician training
programs are not required to be approved by the Board. However, the Board
maintains a list of Board-approved pharmacy technician training programs that
meet the standards established in this section.
(b)
Board-approved pharmacy technician training programs.
(1)
The approval by the Board of pharmacy technician training
programs do not change any requirements for on-site training required of all
pharmacy technicians as outlined in the rules for each class of pharmacy.
(2)
The standard for Board-approved pharmacy technician training
programs shall be the American Society of Health-System Pharmacists' Accreditation
Standard for Pharmacy Technician Training Programs.
(3)
The Board may approve pharmacy technician training programs
which are currently accredited by the American Society of Health-System Pharmacists,
and maintain such accreditation.
(4)
The Board may approve pharmacy technician training programs
not accredited by the American Society of Health-System Pharmacists provided:
(A)
the program meets the American Society of Health-System
Pharmacists' Accreditation Standard for Pharmacy Technician Training Programs,
modified as follows:
(i)
entities providing the pharmacy technician training programs
are not required to be health care organizations or academic institutions;
(ii)
entities that offer or participate in offering pharmacy
technician training programs are not required to be accredited by the Joint
Commission on Accreditation of Healthcare Organizations, the American Osteopathic
Association, or the National Committee on Quality Assurance; and
(iii)
students enrolled in pharmacy technician training programs
must have a high school or equivalent diploma, e.g., GED, or they may be currently
enrolled in a program which awards such a diploma;
(B)
the program:
(i)
makes application to the Board;
(ii)
provides all information requested by the Board, necessary
to confirm that the program meets the requirements outlined in subparagraph
(A) of this paragraph;
(iii)
assists with any inspections requested by the Board of
the facilities, records, and/or programs guidelines necessary to confirm that
the program meets the requirements outlined in subparagraph (A) of this paragraph;
and
(iv)
pays an application processing fee to the Board of $100.00;
(C)
the program director provides written status reports upon
request of the Board and at least every three years to assist in evaluation
of continued compliance with the requirements; and
(D)
the program is subject to an on-site inspection at least
every six years.
(5)
The Board may require an outside entity to conduct any
evaluations and/or inspections of a pharmacy technician training program as
outlined in paragraph (4) of this subsection. This outside entity shall report
to the Board whether a pharmacy technician training program meets the American
Society of Health-System Pharmacists' Accreditation Standards for Pharmacy
Technician Training Programs as modified. Cost of these evaluations shall
be the responsibility of the pharmacy technician training program.
(c)
Students enrolled in a Board-approved pharmacy technician
training programs. A student enrolled in a Board-approved pharmacy technician
training program may be a pharmacy technician trainee for the duration of
their enrollment when working in a pharmacy as part of the experiential component
of the Board-approved pharmacy technician training program.
(d)
Review of accreditation standards. The Board shall review
the American Society of Health-System Pharmacists' Accreditation Standard
for Pharmacy Technician Training Programs periodically and whenever the Standard
is revised.
(e)
Listing of Board-approved Pharmacy Technician Training
Programs. The Board shall maintain a list of the pharmacy technician training
programs approved by the Board and periodically publish this list in the minutes
of the Board. If the Board determines that a training program does not meet
or no longer meets any of the requirements set forth in this section, the
training program will not be listed as a Board-approved pharmacy technician
training program.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 22, 2006.
TRD-200602854
Gay Dodson, R.Ph.
Executive Director/Secretary
Texas State Board of Pharmacy
Effective date: June 11, 2006
Proposal publication date: March 31, 2006
For further information, please call: (512) 305-8028
Chapter 501.
RULES OF PROFESSIONAL CONDUCT
Subchapter E. RESPONSIBILITIES TO THE BOARD/PROFESSION
22 TAC §501.90
The Texas State Board of Public Accountancy adopts an amendment
to §501.90 concerning Discreditable Acts with changes to the proposed
text as published in the February 3, 2006, issue of the
Texas Register
(31 TexReg 638). The Board deleted the word "or" in
two places in paragraph (5) of this rule. The non-substantive changes were
made to clarify the Board's intent to require a final conviction in connection
with all criminal prosecutions.
The amendment to §501.90 will include criminal prosecution for a crime
involving physical harm or threat of physical harm to a person as a discreditable
act, as well as change a reference from §519.16 to §519.17.
The amendment clearly states that crimes involving physical harm or threat
of physical harm will be investigated and prosecuted as discreditable acts.
One comment was received regarding adoption of the rule. The commenter
stated that the Board has overstepped its bounds by imposing an impossible
standard of perfection. The commenter believes that the Board should not punish
license holders for making "minor mistakes". In response to the comment the
Board states that crimes involving physical harm or threats of physical harm
committed by a licensee to another person are not minor mistakes and do reflect
poorly upon the profession, especially since licensees often deal with members
of the public under stressful circumstances.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
§501.90.Discreditable Acts.
A certificate or registration holder shall not commit any act that
reflects adversely on his fitness to engage in the practice of public accountancy.
A discreditable act includes but is not limited to:
(1)
fraud or deceit in obtaining a certificate as a certified
public accountant or in obtaining registration under the Act or in obtaining
a license to practice public accounting;
(2)
dishonesty, fraud or gross negligence in the practice of
public accountancy;
(3)
violation of any of the provisions of Subchapter J or §901.458
of the Act applicable to a person certified or registered by the board;
(4)
final conviction of a felony or imposition of deferred
adjudication or community supervision in connection with a criminal prosecution
of a felony under the laws of any state or the United States;
(5)
final conviction of any crime or imposition of deferred
adjudication or community supervision in connection with a criminal prosecution,
an element of which is dishonesty or fraud under the laws of any state or
the United States, a criminal prosecution for a crime of moral turpitude,
a criminal prosecution involving alcohol abuse or controlled substances, or
a criminal prosecution for a crime involving physical harm or the threat of
physical harm to a person;
(6)
cancellation, revocation, suspension or refusal to renew
authority to practice as a certified public accountant or a public accountant
by any other state for any cause other than failure to pay the appropriate
registration fee in such other state;
(7)
suspension or revocation of or a voluntary consent decree
concerning the right to practice before any state or federal agency for a
cause which in the opinion of the board warrants its action;
(8)
knowingly participating in the preparation of a false or
misleading financial statement or tax return;
(9)
fiscal dishonesty or breach of fiduciary responsibility
of any type;
(10)
failure to comply with a final order of any state or federal
court;
(11)
repeated failure to respond to a client's inquiry within
a reasonable time without good cause;
(12)
misrepresenting facts or making a misleading or deceitful
statement to a client;
(13)
false swearing or perjury in any communication to the
board or any other federal or state regulatory or licensing authority;
(14)
threats of bodily harm or retribution to a client;
(15)
public allegations of a lack of mental capacity of a client
which cannot be supported in fact;
(16)
causing a breach in the security of the CPA examination;
(17)
voluntarily disclosing information communicated to the
certificate holder by an employer, past or present, or through the certificate
holder's employment in connection with accounting services rendered to the
employer, except:
(A)
by permission of the employer;
(B)
pursuant to the Government Code, Chapter 554 (commonly
referred to as the "Whistle Blowers Act");
(C)
pursuant to a subpoena or other compulsory process;
(D)
in an investigation or proceeding by the board under the
Public Accountancy Act; or
(E)
in an ethical investigation conducted by a professional
organization of certified public accountants; and
(18)
breaching the terms of an agreed consent order entered
by the Board or violating any Board Order.
(19)
Interpretive Comment: The board has found in §519.7
of this title (relating to Misdemeanors that Subject a Certificate or Registration
Holder to Discipline by the Board) and §525.1 of this title (relating
to Applications for the Uniform CPA Examination, Issuance of the CPA Certificate,
a License, or Renewal of a License for Individuals with Criminal Backgrounds)
that any crime of moral turpitude directly relates to the practice of public
accountancy. A crime of moral turpitude is defined in this chapter as a crime
involving grave infringement of the moral sentiment of the community. The
board has found in §519.7 of this title that any crime involving alcohol
abuse or controlled substances directly relates to the practice of public
accountancy.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602810
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: February 3, 2006
For further information, please call: (512) 305-7842
22 TAC §505.10
The Texas State Board of Public Accountancy adopts an amendment
to §505.10 concerning Board Committees without changes to the proposed
text as published in the April 7, 2006, issue of the
Texas Register
(31 TexReg 2982). The text of the rule will not be republished.
The amendment to §505.10 will eliminate the Major Case Committee and
replace it with a second Technical Standards Review Committee.
The amendment increases the speed in which complaints regarding violations
of technical standards are processed and resolved.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602811
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: April 7, 2006
For further information, please call: (512) 305-7842
22 TAC §505.11
The Texas State Board of Public Accountancy adopts an amendment
to §505.11 concerning Texas State Board of Public Accountancy Policy
Statement of the Peer Assistance Oversight Committee without changes to the
proposed text as published in the April 7, 2006, issue of the
Texas Register
(31 TexReg 2985). The text of the rule will not be republished.
The amendment to §505.11 will broaden the rule to include all CPA
candidates. As the rule is currently written CPA candidates who have completed
the CPA examination are excluded.
The amendment encourages a larger number of potential license holders to
seek help should they need it.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602812
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: April 7, 2006
For further information, please call: (512) 305-7842
Subchapter C. EDUCATIONAL REQUIREMENTS
22 TAC §511.58
The Texas State Board of Public Accountancy adopts an amendment
to §511.58 concerning Definitions of Related Business Subjects without
changes to the proposed text as published in the April 7, 2006, issue of the
The amendment to §511.58 will define ethical reasoning, integrity,
objectivity and independence as core values for the ethics course requirement.
The amendment will provide greater clarification regarding the ethics courses
the Board requires potential CPAs to take.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602813
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: April 7, 2006
For further information, please call: (512) 305-7842
22 TAC §515.1
The Texas State Board of Public Accountancy adopts an amendment
to §515.1 concerning License without changes to the proposed text as
published in the April 7, 2006, issue of the
Texas
Register
(31 TexReg 2987). The text of the rule will not be republished.
The amendment to §515.1 will stagger firm license renewal every twelve
month period, rather then at the beginning of the year.
The amendment clarifies the Board's firm license renewal procedure.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602814
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: April 7, 2006
For further information, please call: (512) 305-7842
22 TAC §515.3
The Texas State Board of Public Accountancy adopts an amendment
to §515.3 concerning License Renewal for Individuals and Firm Offices
without changes to the proposed text as published in the April 7, 2006, issue
of the
Texas Register
(31 TexReg 2987). The
text of the rule will not be republished.
The amendment to §515.3 will change the expiration date of a firm
license from December 31st of each year to the last day of the month of the
firm's registration.
The amendment creates a more efficient method of processing firm license
renewals.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602815
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: April 7, 2006
For further information, please call: (512) 305-7842
22 TAC §517.2
The Texas State Board of Public Accountancy adopts an amendment
to §517.2 concerning Application for Temporary Permit without changes
to the proposed text as published in the April 7, 2006, issue of the
The amendment to §517.2 will clarify that firms practicing public
accountancy under a Temporary Practice Permit are subject to the same terms
and conditions of practice as firms that hold a Texas Firm License. In addition,
Temporary Practice Permits can be renewed annually.
The amendment subjects out-of-state firms to the Board's jurisdiction even
if they operate with temporary licenses and allows out-of-state firms to renew
their Temporary Practice Permits annually.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602816
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: April 7, 2006
For further information, please call: (512) 305-7842
Subchapter A. GENERAL PROVISIONS
22 TAC §519.2
The Texas State Board of Public Accountancy adopts an amendment
to §519.2 concerning Definitions with changes to the proposed text as
published in the February 3, 2006, issue of the
Texas Register
(31 TexReg 639). The Board inserted the word "Direct"
in paragraph (8), formerly paragraph (2), of this rule to be consistent with
TEX. OCC. CODE §901.501(a)(9). The Board also renumbered paragraphs (2)
through (8) in this rule so that the definitions remain in alphabetical order.
The non-substantive changes were made to clarify the Board's definition of
"direct administrative costs" as stated in TEX. OCC. CODE §901.501(a)(9).
The amendment to §519.2 will define "direct administrative costs"
as found in Tex. OCC. Code §901.501(a)(9).
The amendment increases the recovery of the Board's expenses that are incurred
in prosecuting cases against licensees.
One comment was received by the Board. The Texas Society of Certified Public
Accountants commented that it supported the new §501.86; however, it
expressed concern over the controversy regarding the Board's ability to collect
staff salaries, including Board and attorney salaries, as a direct administrative
cost under proposed §519.2. The Society points out that the State Office
of Administrative Hearings do not allow recovery of these fees and that as
a general rule, Texas courts require express statutory authority to collect
attorney fees. The Society asks the Board to seek an Attorney General opinion
on the matter.
In response to the TSCPA's comment, the Board believes that an exception
to the general rule disallowing the recovery of attorney's fees applies to
this rule. However, the Board will consider submitting the question to the
Attorney General's Office. The Board will make its decision concerning an
Attorney General's opinion after adopting the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
§519.2.Definitions.
In this chapter:
(1)
"Address of record" means the last address provided to
the board by a certificate or registration holder pursuant to board rule 501.93
of this title (relating to Responses);
(2)
"ALJ" means administrative law judge;
(3)
"APA" means the Texas Administrative Procedure Act, chapter
2001 of the Texas Government Code;
(4)
"Board staff" means the employees or independent contractors
of the board;
(5)
"Committee" means an enforcement committee of the board
which are the Behavioral Enforcement Committee, the Technical Standards Review
Committee and the Major Case Enforcement Committee;
(6)
"Complaint" means information available to or provided
to the board indicating that a certificate or registration holder may have
violated the Act, board rules, or order of the board;
(7)
"Complainant" means the person or entity who initiates
a complaint with board against a certificate or registration holder;
(8)
"Direct Administrative costs" means those costs actually
incurred by the board through payment to outside vendors and the resources
expended by the board in the investigation and prosecution of a matter within
the board's jurisdiction, including but not limited to, staff salary, payroll
taxes and benefits and other non-salary related expenses, expert fees and
expenses, witness fees and expenses, fees and expenses paid to the Office
of the Attorney General, filing fees, SOAH utilization fees, court reporting
fees, copying fees, delivery fees, case management fees, costs of exhibit
creation, technical fees, travel costs and any other cost or fee that can
reasonably be attributed to the matter;
(9)
"PFD" means the proposal for decision prepared by an administrative
law judge;
(10)
"Respondent" means a certificate or registration holder
against whom a complaint has been filed; and
(11)
"SOAH" means the State Office of Administrative Hearings.
This agency hereby certifies that the adoption has been
reviewed by legal counsel and found to be a valid exercise of the agency's
legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602817
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: February 3, 2006
For further information, please call: (512) 305-7842
22 TAC §519.7
The Texas State Board of Public Accountancy adopts an amendment
to §519.7 concerning Misdemeanors that Subject a Certificate or Registration
Holder to Discipline by the Board without changes to the proposed text as
published in the February 3, 2006, issue of the
Texas Register
(31 TexReg 640). The text of the rule will not be republished.
The amendment to §519.7 will include additional misdemeanors that
effect the practice of public accountancy; namely, those misdemeanors involving
assault.
The amendment provides greater protection to the public by the Board from
license holders who commit assault or related crimes.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602818
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: February 3, 2006
For further information, please call: (512) 305-7842
22 TAC §519.9
The Texas State Board of Public Accountancy adopts an amendment
to §519.9 concerning Administrative Penalty Guidelines without changes
to the proposed text as published in the February 3, 2006, issue of the
The amendment to §519.9 will make a change to the Administrative Penalty
Guideline chart only. The change is in #21 of Figure 22 TAC §519.9(a)
where the sentence "moral turpitude; abuse of alcohol or controlled substances;
or physical injury or threats of physical injury to a person" has been added
to the end of that section.
The amendment provides greater clarity regarding the amount of administrative
penalty that may be imposed by the Board upon persons convicted of crimes
or subject to deferred adjudication involving physical harm or threat of physical
harm.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602819
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: February 3, 2006
For further information, please call: (512) 305-7842
Subchapter D. STANDARDS FOR CONTINUING PROFESSIONAL EDUCATION PROGRAMS AND RULES FOR SPONSORS
22 TAC §523.144
The Texas State Board of Public Accountancy adopts an amendment
to §523.144 concerning Board Registered CPE Sponsors after January 1,
2005 without changes to the proposed text as published in the April 7, 2006,
issue of the
Texas Register
(31 TexReg 2989).
The text of the rule will not be republished.
The amendment to §523.144 will make a change to Figure 22 TAC §523.144(c)
chart only. The amendment to the chart changes the total annual registration
fee for 1-4 course titles offered from $750 down to $600.
The amendment brings sponsor review program revenues more in line with
costs.
No comments were received regarding adoption of the rule.
The amendment is adopted under the Public Accountancy Act ("Act"),
Texas Occupations Code, §901.151 which provides the agency with the authority
to amend, adopt and repeal rules deemed necessary or advisable to effectuate
the Act.
No other article, statute or code is affected by the adoption.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 18, 2006.
TRD-200602820
Andrea Carter
Staff Attorney
Texas State Board of Public Accountancy
Effective date: June 7, 2006
Proposal publication date: April 7, 2006
For further information, please call: (512) 305-7842
Chapter 831.
MIDWIFERY
The Texas Midwifery Board (board), with the approval of the Executive
Commissioner of the Health and Human Services Commission (executive commissioner),
adopts amendments to §§831.1 - 831.3, 831.7, 831.121, and 831.131,
repeal of §§831.11, 831.31, and 831.161, and new §§831.4,
831.11 - 831.17, 831.20 - 831.23, 831.31 - 831.37, 831.40, and 831.161 - 831.173,
concerning the licensing and regulation of midwives without changes to the
proposed text as published in the December 2, 2005, issue of the
Texas Register
(30 TexReg 7977) and, therefore, the sections will not
be republished.
BACKGROUND AND PURPOSE
The Texas Legislature passed House Bill (HB) 1535, 79th Legislature, Regular
Session (2005), Sunset legislation, relating to the continuation and functions
of the board; and the licensing and regulation of midwives. A new jurisprudence
examination will be administered starting September 1, 2006, for all new applicants
for licensure; and once every four years for renewal applicants. A jurisprudence
examination fee of $35 will be collected by the contracted agency that is
approved by the department. The rules also implement HB 2680, 79th Legislature,
Regular Session (2005), relating to reduced fees and continuing education
requirements for retired health professionals, including licensed midwives,
engaged in the provision of voluntary charity care. Additionally, new language
related to emergency suspension was added by Acts 2003, 78th Legislature,
Chapter 326, §1.
SECTION-BY-SECTION SUMMARY
Repeal of §831.11 (relating to documentation), §831.31 (relating
to education), and §831.61 (relating to complaint review) is being proposed
in order to establish new sections which reflect the changes required by recent
legislation, agency and reorganization.
New sections in Subchapters A, B, C, D and E are proposed to incorporate
existing rule language from the sections being repealed which is still required,
and to implement recent legislation.
Amendments to §§831.1 - 831.3, 831.7, 831.121, and 831.131 reflect
changes to the Texas Occupations Code, Chapter 203, relating to the changes
in the composition of the board, change in terminology from "documentation"
to "licensure", and the transfer of the functions of the abolished Board of
Health variously to the department, the Commissioner of the Department of
State Health Services (commissioner), and the executive commissioner.
Amendments to §831.1 reflect new section names.
Amendments to §831.2 reflect changes required by the abolishment of
the "Board of Health"; deletion of "documentation"; and the addition of "Executive
Commissioner." The section has been renumbered to reflect deletions and insertions.
Amendments to §831.3 reflect changes required by the abolishment of
the Board of Health. The amendments also include changes required by Sunset
legislation, including the authority of Commissioner to appoint members to
the board and the board chair, and the deletion of the $50 per diem payment
to board members in addition to travel reimbursement. Also, the term "chairperson"
is shortened to "chair."
New §831.4 reflects the new Sunset legislation requirement for board
member training.
Amendments to §831.7 reflect the name change from the Texas Department
of Health to the Department of State Health Services.
An amendment to the name of Subchapter B reflects Sunset legislation in
the change from "Documentation" to "Licensure."
New §831.11 includes the same rule language related to the requirement
for a license previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure.
New §831.12 includes the same rule language related to fees previously
included in the section proposed for repeal. The obsolete language related
to a one-year term for renewal has been deleted. The section also includes
the change in the structure of late fees required by Sunset legislation, the
new reduced fee for renewal for a retired midwife providing voluntary charity
care required by HB 2680 of $275 for each two year renewal, the new jurisprudence
examination fee of $35, and an increase in the site visit fee for approved
midwifery courses from $400 to $500 every three years, in order to cover increased
travel reimbursement costs associated with conducting the site visit.
New §831.13 and §831.14 include the same rule language related
to application for a license and renewal of a license previously included
in the section proposed for repeal. It reflects Sunset legislation in the
change from "documentation" to "licensure," and the new requirement for a
jurisprudence examination.
New §831.15 includes the same rule language related to late renewal
of a license previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure," the
new requirement for a jurisprudence examination, and the new one-year limit
on late renewal.
New §831.16 establishes the standards for renewal of a license with
reduced renewal fees and continuing education requirements for a retired midwife
providing voluntary charity care as required by HB 2680. This section defines
"retired midwife" and "voluntary charity care," and establishes renewal requirements,
late renewal requirements, and requirements for returning a license which
was renewed under this section to active status.
New §831.17 includes the same rule language related to state roster
previously included in the section proposed for repeal.
New §831.20 includes the same rule language related to grounds for
denial of application or disciplinary action previously included in the section
proposed for repeal. It reflects Sunset legislation in the change from "documentation"
to "licensure," and the new authority of the board to refuse to renew a license
for non-payment of an administrative penalty imposed by the board.
New §831.21 includes the same rule language related to application
or renewal with criminal conviction previously included in the section proposed
for repeal. It reflects Sunset legislation in the change from "documentation"
to "licensure," and the new requirement for rules specifying the types of
criminal convictions that would constitute grounds for board to take action
against an individual under Texas Occupations Code, Chapter 53.
New §831.22 includes the same rule language related to surrender of
license previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure."
New §831.23 includes the same rule language related to reissuance
of license after revocation, suspension or surrender previously included in
the section proposed for repeal. It reflects Sunset legislation in the change
from "documentation" to "licensure."
An amendment to the name of Subchapter C reflects the new sections covering
both education and examination.
New §831.31 includes the same rule language related to the education
committee previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure," and
a change in composition due to the new requirement that all committee members
be members of the board. The term "chairperson" is shortened to "chair," and
the term of appointment for committee members is changed from one year to
two years.
New §831.32 includes the same rule language related to basic midwifery
education previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure," and
includes revised language allowing a physician licensed in the United States
who is actively engaged in the practice of obstetrics to serve as a clinical
preceptor for a midwifery student enrolled in an approved course.
New §831.33 includes the same rule language related to education course
approval previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure." The
term "chairperson" is shortened to "chair."
New §831.34 includes the same rule language related to education course
denial or revocation of approval previously included in the section proposed
for repeal. The term "chairperson" is shortened to "chair."
New §831.35 includes the same rule language related to exam approval,
denial or revocation of approval previously included in the section proposed
for repeal. The term "chairperson" is shortened to "chair."
New §831.36 includes the same rule language related to complaints
concerning education courses and comprehensive exams previously included in
the section proposed for repeal. The term "chairperson" is shortened to "chair."
New §831.37 establishes the standards for the new jurisprudence examination
as required by Sunset legislation.
New §831.40 includes the same rule language related to continuing
education previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure." It includes
language permitting an approved basic midwifery education course to offer
continuing education credits to licensed midwives.
Amendments to §831.121 reflect the change from "documentation" to
"licensure," as well as corrections to a citation from Texas Revised Civil
Statutes to the Texas Occupations Code.
Amendments to §831.131 reflect the change from "documentation" to
"licensure."
New §831.161 includes the same rule language related to the complaint
review committee previously included in the section proposed for repeal. It
reflects Sunset legislation in the change from "documentation" to "licensure,"
and a change in composition due to the new requirement that all committee
members be members of the board. The term "chairperson" is shortened to "chair,"
and the term of appointment for committee members is revised from one year
to two years.
New §831.162 includes the same rule language related to reporting
violations and/or complaints previously included in the section proposed for
repeal. It reflects Sunset legislation in the change from "documentation"
to "licensure."
New §831.163 includes the same rule language related to records of
complaints previously included in the section proposed for repeal.
New §831.164 includes the same rule language related to complaint
categories previously included in the section proposed for repeal.
New §831.165 includes the same rule language related to disciplinary
action and guidelines previously included in the section proposed for repeal.
It reflects Sunset legislation in the change from "documentation" to "licensure,"
and in the increase of the maximum administrative penalty from $1,000 to $5,000.
New §831.166 includes the same rule language related to complaint
investigation previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure."
New §831.167 includes the same rule language related to informal settlement
conferences previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure." The
term "chairperson" is shortened to "chair."
New §831.168 includes the same rule language related to hearings previously
included in the section proposed for repeal.
New §831.169 includes the same rule language related to disciplinary
action previously included in the section proposed for repeal. It reflects
Sunset legislation in the change from "documentation" to "licensure," and
in the increase in the maximum administrative penalty of up to $5,000 per
violation. It includes language authorizing the board to impose either a written
warning or a reprimand as a disciplinary action.
New §831.170 includes the same rule language related to complaint
disposition and appeals previously included in the section proposed for repeal.
It reflects Sunset legislation in the change from "documentation" to "licensure."
New §831.171 reflects Sunset legislation authorizing the board to
enter into an agreed order with a midwife, which provides for a refund to
the client.
New §831.172 reflects Sunset legislation authorizing the board to
issue a cease and desist order, and establishing that a violation of that
order is grounds for imposition of an administrative penalty.
New §831.173 implements changes to the Act effective September 1,
2003, related to emergency suspension, including establishing members of the
complaint review committee selected the board chair as the three-member committee
designated to temporarily suspend a license.
COMMENTS
The board did not receive any comments regarding the proposed rules during
the comment period.
LEGAL CERTIFICATION
The Department of State Health Services General Counsel, Cathy Campbell,
certifies that the rules, as adopted, have been reviewed by legal counsel
and found to be a valid exercise of the agencies' legal authority.
Subchapter A. THE BOARD
22 TAC §§831.1 - 831.4, 831.7
STATUTORY AUTHORITY
The final amendments and new rule are authorized by the Texas Occupations
Code, §203.151, which provides that, subject to the approval of the Executive
Commissioner of the Health and Human Services Commission, the Midwifery Board
shall adopt substantive and procedural rules for the licensing of midwives
and minimum standards for the practice of midwifery, including educational
requirements, complaint and disciplinary procedures, reciprocity of licensing
with other states, and such other duties as may be imposed by the Texas Occupations
Code, Chapter 203.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed with the Office of
the Secretary of State on May 17, 2006.
TRD-200602790
Brent Baylor
Chair
Texas Midwifery Board
Effective date: June 6, 2006
Proposal publication date: December 2, 2005
For further information, please call: (512) 458-7111 x6972
22 TAC §831.11
STATUTORY AUTHORITY
The final repeal is authorized by the Texas Occupations Code, §203.151,
which provides that, subject to the approval of the Executive Commissioner
of the Health and Human Services Commission, the Midwifery Board shall adopt
substantive and procedural rules for the licensing of midwives and minimum
standards for the practice of midwifery, including educational requirements,
complaint and disciplinary procedures, reciprocity of licensing with other
states, and such other duties as may be imposed by the Texas Occupations Code,
Chapter 203.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 17, 2006.
TRD-200602791
Brent Baylor
Chair
Texas Midwifery Board
Effective date: June 6, 2006
Proposal publication date: December 2, 2005
For further information, please call: (512) 458-7111 x6972
22 TAC §§831.11 - 831.17, 831.20 - 831.23
STATUTORY AUTHORITY
The new rules are authorized by the Texas Occupations Code, §203.151,
which provides that, subject to the approval of the Executive Commissioner
of the Health and Human Services Commission, the Midwifery Board shall adopt
substantive and procedural rules for the licensing of midwives and minimum
standards for the practice of midwifery, including educational requirements,
complaint and disciplinary procedures, reciprocity of licensing with other
states, and such other duties as may be imposed by the Texas Occupations Code,
Chapter 203.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 17, 2006.
TRD-200602792
Brent Baylor
Chair
Texas Midwifery Board
Effective date: June 6, 2006
Proposal publication date: December 2, 2005
For further information, please call: (512) 458-7111 x6972
22 TAC §831.31
STATUTORY AUTHORITY
The final repeal is authorized by the Texas Occupations Code, §203.151,
which provides that, subject to the approval of the Executive Commissioner
of the Health and Human Services Commission, the Midwifery Board shall adopt
substantive and procedural rules for the licensing of midwives and minimum
standards for the practice of midwifery, including educational requirements,
complaint and disciplinary procedures, reciprocity of licensing with other
states, and such other duties as may be imposed by the Texas Occupations Code,
Chapter 203.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 17, 2006.
TRD-200602793
Brent Baylor
Chair
Texas Midwifery Board
Effective date: June 6, 2006
Proposal publication date: December 2, 2005
For further information, please call: (512) 458-7111 x6972
22 TAC §§831.31 - 831.37, 831.40
STATUTORY AUTHORITY
The final new rules are authorized by the Texas Occupations Code, §203.151,
which provides that, subject to the approval of the Executive Commissioner
of the Health and Human Services Commission, the Midwifery Board shall adopt
substantive and procedural rules for the licensing of midwives and minimum
standards for the practice of midwifery, including educational requirements,
complaint and disciplinary procedures, reciprocity of licensing with other
states, and such other duties as may be imposed by the Texas Occupations Code,
Chapter 203.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 17, 2006.
TRD-200602794
Brent Baylor
Chair
Texas Midwifery Board
Effective date: June 6, 2006
Proposal publication date: December 2, 2005
For further information, please call: (512) 458-7111 x6972
22 TAC §831.121, §831.131
STATUTORY AUTHORITY
The final amendments are authorized by the Texas Occupations Code, §203.151,
which provides that, subject to the approval of the Executive Commissioner
of the Health and Human Services Commission, the Midwifery Board shall adopt
substantive and procedural rules for the licensing of midwives and minimum
standards for the practice of midwifery, including educational requirements,
complaint and disciplinary procedures, reciprocity of licensing with other
states, and such other duties as may be imposed by the Texas Occupations Code,
Chapter 203.
This agency hereby certifies that the adoption has been reviewed
by legal counsel and found to be a valid exercise of the agency's legal authority.
Filed
with the Office of the Secretary of State on May 17, 2006.
TRD-200602795
Brent Baylor
Chair
Texas Midwifery Board
Effective date: June 6, 2006
Proposal publication date: December 2, 2005
For further information, please call: (512) 458-7111 x6972
Chapter 74.
CHIROPRACTIC FACILITIES
Chapter 75.
RULES OF PRACTICE
Part 8.
TEXAS APPRAISER LICENSING AND CERTIFICATION BOARD
Part 14.
TEXAS OPTOMETRY BOARD
Part 15.
TEXAS STATE BOARD OF PHARMACY
Chapter 291.
PHARMACIES
Chapter 297.
PHARMACY TECHNICIANS AND PHARMACY TECHNICIAN TRAINEES
Chapter 305.
EDUCATIONAL REQUIREMENTS
Part 22.
TEXAS STATE BOARD OF PUBLIC ACCOUNTANCY
Chapter 505.
THE BOARD
Chapter 511.
CERTIFICATION AS A CPA
Chapter 515.
LICENSES
Chapter 517.
TEMPORARY PRACTICE IN TEXAS
Chapter 519.
PRACTICE AND PROCEDURE
Chapter 523.
CONTINUING PROFESSIONAL EDUCATION
Part 38.
TEXAS MIDWIFERY BOARD
Subchapter B. DOCUMENTATION
Subchapter B. LICENSURE
Subchapter C. EDUCATION
Subchapter C. EDUCATION AND EXAMINATION
Subchapter D. PRACTICE OF MIDWIFERY
Subchapter E. COMPLAINT REVIEW